As filed with the Securities and Exchange Commission on August 19, 1997
Registration Nos. 333-__________
333-_______-01
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------------
GREENPOINT FINANCIAL CORP. GREENPOINT CAPITAL TRUST I
(Exact name of registrant (Exact namer of registrant as
as specified in its charter) specified in its Trust Agreement)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation organization) incorporation or organization)
6712 6799
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
06-1379001 13-7124901
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
GreenPoint Financial Corp. c/o GreenPoint Financial Corp.
90 Park Avenue 90 Park Avenue
New York, New York 10016 New York, New York 10016
(212) 834-1711 (212) 834-1711
(Address, including zip code, and (Address including zip code,
telephone number including area code, and telephone number, including
of registrant's principal executive offices) area code, of registrant's
principal executive offices)
-------------------------
Howard C. Bluver
Senior Vice President and General Counsel
GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
(212) 834-1724
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With a copy to:
Kenneth L. Bachman, Esq.
Cleary, Gottlieb, Steen & Hamilton
1752 N Street, N.W.
Washington, D.C. 20036
(202) 728-2765
Approximate date of commencement of proposed sale to the
public: As promptly as practicable after the effective date of
this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is __
compliance with General Instruction G, please check the following box. __
<PAGE>
CALCULATION OF REGISTRATION FEE
============================================================================
Title of each Class Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Unit (1) Offering Price (1) Fee
- ----------------------------------------------------------------------------
9.10% Subordinated $200,000,000 100% $200,000,000 $60,606.06
Capital Income
Securities of GreenPoint
Capital Trust I
- ----------------------------------------------------------------------------
Junior Subordinated N/A N/A N/A N/A
Debentures due 2027 of
GreenPoint Financial
Corp. (2)
- ----------------------------------------------------------------------------
GreenPoint Financial N/A N/A N/A N/A
Corp. Guarantee with
respect to the 9.10%
Subordinated Capital
Income Securities (3)
- ----------------------------------------------------------------------------
Total (4) $200,000,000 100% $200,000,000(5) $60,606.06
============================================================================
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Debentures due 2027 were purchased
by GreenPoint Capital Trust I with the proceeds of the sale
of the Subordinated Capital Income Securities (the "Old
Capital Securities"). No separate consideration will be
received for the Junior Subordinated Debentures due 2027
distributed upon any liquidation of GreenPoint Capital
Trust I.
(3) No separate consideration will be received for the GreenPoint
Financial Corp. Guarantee.
(4) This Registration Statement is deemed to cover the Junior
Subordinated Debentures due 2027 of GreenPoint
Financial Corp., the rights of holders of the
Junior Subordinated Debentures due 2027 of Greenpoint
Financial Corp. under the Indenture, the rights of holders
of Subordinated Capital Income Securities of GreenPoint
Capital Trust I under the Declaration of Trust and the
rights of holders of Subordinated Capital Income Securities
under the Guarantee of GreenPoint Financial Corp., which
taken together fully and unconditionally guarantee the
obligations of Greenpoint Capital Trust I under the
Subordinated Capital Income Securities.
(5) Such amount represents the aggregate liquidation amount of
the Subordinated Capital Income Securities to be issued and
exchanged hereunder for the Old Capital Securities and the
principal amount of Junior Subordinated Debentures due 2027
that may be distributed upon liquidation of GreenPoint
Capital Trust I.
--------------------
The registrants hereby amend this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrants shall file a further
amendment which specifically states that this registration
statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this
registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
=================================================================
<PAGE>
CROSS-REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
showing location in the Prospectus
of Information Required by Items in Form S-4
Item Location in Prospectus
---- ----------------------
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus .....Facing Page of the Registration
Statement; Cross Reference Sheet;
Outside From Cover Page of
Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus .....Available Information; Outside
Back Cover of Prospectus
3. Risk Factors, Ratio of Earnings
to Fixed Charges and Other
Information ...................Summary; Risk Factors; Ratio of
Earnings to Combined Fixed
Charges and Preferred Stock
Dividends; The Trust; Selected
Financial Data
4. Terms of the Transaction .......Summary; Risk Factors; The
Exchange offer; Description of
Capital Securities; Description
of Junior Subordinated Debentures;
Description of Guarantee; Relation-
ship Among the Capital Securities,
the Junior Subordinated Debentures
and the Guarantee; Plan of Distri-
bution; Certain Federal Income
Tax Consequences
5. Pro Forma Financial
Information ...................Not Applicable
6. Material Contracts With the
Company Being Acquired ........Not Applicable
7. Additional Information
Required for Reoffering
by Persons and Parties
Deemed to be Underwriters .....Not Applicable
8. Interests of Named Experts
and Counsel ...................Not Applicable
9. Disclosure of Commission
Position on Indemnification
for Securities Act
Liabilities ...................Not Applicable
10. Information with Respect to
S-3 Registrants ...............Prospectus Summary; The Trust
11. Incorporation of Certain
Information by Reference ......Available Information; Incorporation
of Certain Information by
Reference
12. Information with Respect
to S-2 or S-3 Registrants .....Not Applicable
13. Incorporation of Certain
Information by Reference ......Not Applicable
14. Information with Respect
to Registrants Other than
S-3 or S-2 Registrants ........Not Applicable
15. Information with Respect
to S-3 Companies ..............Not Applicable
16. Information with Respect
to S-2 or S-3 Companies .......Not Applicable
17. Information with Respect
to Companies Other Than
S-3 or S-2 Companies ..........Not Applicable
18. Information if Proxies,
Consents or Authorizations
Are To Be Solicited ...........Not Applicable
19. Information if Proxies,
Consents or Authorizations
Are Not To Be Solicited
or in an Exchange Offer .......Description of Junior Subordinated
Debentures; Description of
Guarantee; Relationship Among
the Capital Securities, the
Junior Subordinated Debentures
and the Guarantee; Summary; The
Exchange Offer; Description of
Capital Securities
<PAGE>
SUBJECT TO COMPLETION, DATED ___________ __, 1997
PROSPECTUS
$200,000,000
GREENPOINT CAPITAL TRUST I
Offer to exchange its 9.10% Subordinated Capital Income
Securities which have been registered under the Securities Act of
1933 for any and all of its outstanding 9.10% Subordinated
Capital Income Securities
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed to the extent set forth herein by
GREENPOINT FINANCIAL CORP.
The Exchange Offer and Withdrawal Rights will expire at 5:00
p.m., New York City time, on _____________ __, 1997, unless
extended
--------------------
GreenPoint Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus (as the same may be amended or
supplemented from time to time, the "Prospectus") and in the
accompanying Letter of Transmittal (which together constitute the
"Exchange Offer"), to exchange up to $200,000,000 aggregate
liquidation amount of its 9.10% Subordinated Capital Income
Securities, liquidation amount $1,000 per Capital Security (the
"New Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a Registration Statement (as defined herein) of which
this Prospectus constitutes a part, for a like liquidation amount
of its outstanding 9.10% Subordinated Capital Income Securities,
liquidation amount $1,000 per Capital Security (the "Old Capital
Securities"), of which $200,000,000 aggregate liquidation amount
is outstanding. Pursuant to the Exchange Offer, GreenPoint
Financial Corp., a Delaware corporation (the "Company"), is also
exchanging (i) its guarantee with respect to the payment of
distributions and other payments on liquidation or redemption of
the Old Capital Securities (the "Old Guarantee") for a like
guarantee of the New Capital Securities (the "New Guarantee"),
and (ii) all of its outstanding 9.10% Junior Subordinated
Debentures due 2027 (the "Old Junior Subordinated Debentures"),
of which $206,185,567 aggregate principal amount is outstanding,
for a like aggregate principal amount of its 9.10% Junior
Subordinated Debentures due 2027 (the "New Junior Subordinated
Debentures"), which New Guarantee and New Junior Subordinated
Debentures also have been registered under the Securities Act.
The Old Capital Securities, the Old Guarantee and the Old Junior
Subordinated Debentures are collectively referred to herein as
the "Old Securities" and the New Capital Securities, the New
Guarantee and the New Junior Subordinated Debentures are
collectively referred to herein as the "New Securities."
--------------------
See "Risk Factors" beginning on page __ of this prospectus
for certain information relevant to an investment in the New
Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------
The date of this Prospectus is _____________ __, 1997
*********************************************************************
* Information contained herein is subject to completion or *
* amendment. A registration statement relating to these securities *
* has been filed with the Securities and Exchange Commission. These *
* securities may not be sold nor may offers to buy be accepted *
* prior to the time the registration statement becomes effective. *
* This prospectus shall not constitute an offer to sell or the *
* solicitation of an offer to buy nor shall there be any sale of *
* these securities in any State in which such offer, solicitation *
* or sale would be unlawful prior to registration or qualification *
* under the securities laws of any State. *
* *
*********************************************************************
<PAGE>
(continued from cover page)
The terms of the New Securities are identical in all
material respects to the respective terms of the Old Securities,
except that (i) the New Securities have been registered under the
Securities Act and therefore will not be subject to certain
restrictions on transfer applicable to the Old Securities, (ii)
the New Capital Securities will not provide for any increase in
the distribution rate thereon, and (iii) the New Junior
Subordinated Debentures will not provide for any increase in the
interest rate thereon. See "Description of Capital Securities."
The New Capital Securities are being offered for exchange in
order to satisfy certain obligations of the Company and the Trust
under the Registration Rights Agreement, dated June 3, 1997 (the
"Registration Rights Agreement"), among the Company, the Trust
and Lehman Brothers Inc., as representative of the Initial
Purchasers (as defined herein) of the Old Capital Securities.
In the event that the Exchange Offer is consummated, any Old
Capital Securities which remain outstanding after consummation of
the Exchange Offer will vote together with the New Capital
Securities issued in the Exchange Offer as a single class for
purposes of determining whether holders of the requisite
percentage in outstanding liquidation amount thereof have taken
certain actions or exercised certain rights under the Declaration
(as defined herein).
The Old Capital Securities and the New Capital Securities
are collectively referred to herein as the "Capital Securities."
The Old Capital Securities represent, and the New Capital
Securities when issued will represent, undivided beneficial
interests in the assets of the Trust. The Company owns all of the
common securities of the Trust (the "Common Securities")
representing undivided beneficial interests in the assets of the
Trust. The Trust exists for the sole purpose of issuing the
Common Securities and the Capital Securities (together, the
"Trust Securities") and investing the proceeds thereof in the
Junior Subordinated Debentures (as defined herein) and certain
other limited activities described herein.
The Old Junior Subordinated Debentures and the New Junior
Subordinated Debentures are collectively referred to herein as
the "Junior Subordinated Debentures" and the Old Guarantee and
the New Guarantee are collectively referred to herein as the
"Guarantee."
Holders of the Capital Securities are or will be, as the
case may be, entitled to receive cumulative cash distributions
accruing from June 3, 1997, the date of original issuance of the
Old Capital Securities, and payable semi-annually in arrears on
the 1st day of December and June of each year, commencing
December 1, 1997, at the annual rate of 9.10% of the liquidation
amount of $1,000 per Capital Security ("Distributions"). The
distribution rate and the distribution payment dates and other
payment dates for the Capital Securities will correspond to the
interest rate and interest payment dates and other payment dates
on the Junior Subordinated Debentures, which will be the sole
assets of the Trust. The Company will guarantee the payment of
Distributions and payments on liquidation of the Trust or
redemption of the Capital Securities, but only in each case to
the extent of funds held by the Trust, as described herein (the
"Guarantee"). See "Description of Guarantee." If the Company does
not make interest payments on the Junior Subordinated Debentures
held by the Trust, the Trust will have insufficient funds to pay
Distributions on the Capital Securities. The Company's
obligations under the Guarantee, taken together with its
obligations under the Junior Subordinated Debentures and the
Indenture (as defined herein), including its obligation to pay
all costs, expenses and liabilities of the Trust (other than with
respect to the Capital Securities), constitute a full and
unconditional guarantee of all of the Trust's obligations under
the Capital Securities. The obligations of the Company under the
Guarantee and the Junior Subordinated Debentures are subordinate
and junior in right of payment to all Indebtedness (as defined in
"Description of Junior Subordinated Debentures -- Subordination")
of the Company and will be structurally subordinated to all
liabilities and obligations of the Company's subsidiaries. As of
June 30, 1997,
<PAGE>
the Company had approximately $236 million aggregate
principal amount of Indebtedness outstanding, and the Company's
subsidiaries had approximately $507 million of indebtedness and
other liabilities. The terms of the Junior Subordinated
Debentures place no limitation on the amount of Indebtedness that
may be incurred by the Company or on the amount of liabilities
and obligations of the Company's subsidiaries. See "Description
of Junior Subordinated Debentures -- Subordination."
The Company has the right to defer payment of interest on
the Junior Subordinated Debentures at any time or from time to
time for a period not exceeding 10 consecutive semi-annual
periods with respect to each deferral period (each, an "Extension
Period"), provided that no Extension Period may extend beyond the
Stated Maturity (as defined herein) of the Junior Subordinated
Debentures. Upon the termination of any such Extension Period and
the payment of all amounts then due on any Interest Payment Date
(as defined herein), the Company may elect to begin a new
Extension Period subject to the requirements set forth herein.
Accordingly, there could be multiple Extension Periods of varying
lengths throughout the term of the Junior Subordinated
Debentures. If interest payments on the Junior Subordinated
Debentures are so deferred, distributions on the Capital
Securities will also be deferred and the Company may not, and may
not permit any subsidiary of the Company to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, the Company's
capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt
securities that rank pari passu with or junior to the Junior
Subordinated Debentures or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of
any subsidiary of the Company if such guarantee ranks pari passu
with or junior to the Junior Subordinated Debentures (other than
(a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or
consultants, or in connection with a dividend reinvestment or
stockholder stock purchase plan, (b) as a result of an exchange
or conversion of any class or series of the Company's capital
stock (or any capital stock of a subsidiary of the Company) for
any class or series of the Company's capital stock or of any
class or series of the Company's indebtedness for any class or
series of the Company's capital stock, (c) the purchase of
fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholder's
rights plans, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the
form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on
which the dividend is being paid (or ranks pari passu with or
junior to such stock). During an Extension Period, interest on
the Junior Subordinated Debentures will continue to accrue (and
the amount of Distributions to which holders of the Capital
Securities are entitled will accumulate) at the rate of 9.10% per
annum, compounded semi-annually to the extent permitted by
applicable law, and holders of the Capital Securities will be
required to accrue interest income for United States federal
income tax purposes prior to the receipt of cash related to such
interest income. See "Description of Junior Subordinated
Debentures -- Option to Extend Interest Payment Period" and
"Certain United States Federal Income Tax Consequences --
Interest Income and Original Issue Discount."
The Junior Subordinated Debentures are not redeemable prior
to June 1, 2007 unless a Special Event (as defined herein) has
occurred. The Junior Subordinated Debentures are redeemable prior
to maturity at the option of the Company, subject to the receipt
of any necessary prior regulatory approval (i) on or after June
1, 2007, in whole or in part, at a redemption price equal to
104.4790% of the principal amount thereof on June 1, 2007,
declining ratably on each June 1 thereafter to 100% on or after
June 1, 2017, plus the accrued and unpaid interest thereon, or
(ii) at any time, in whole (but not in part), upon the occurrence
and continuation of a Special Event, at a redemption price equal
to the greater of (a) 100%
2
<PAGE>
of the principal amount thereof or (b) as determined by a
Quotation Agent (as hereinafter defined), the sum of the present
values of the principal amount and premium payable with respect
to an optional redemption of such Junior Subordinated Debentures
on June 1, 2007, together with scheduled payments of interest
from the prepayment date to June 1, 2007, discounted to the
prepayment date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate
(as defined herein) plus, in either case, accrued interest
thereon to the date of prepayment, in each case subject to the
further conditions described under "Description of Junior
Subordinated Debentures -- Redemption." The Capital Securities
are subject to mandatory redemption, in whole or in part, upon
repayment of the Junior Subordinated Debentures at maturity or
their earlier redemption, in an amount equal to the amount of
related Junior Subordinated Debentures maturing or being redeemed
and at a redemption price equal to the redemption price of such
Junior Subordinated Debentures, in each case plus accumulated and
unpaid Distributions thereon to the date of redemption.
The Company will have the right, at any time, subject to
the receipt of any necessary prior regulatory approval, to
dissolve the Trust and, after satisfaction of the claims of
creditors of the Trust, if any, as provided by applicable law,
cause the Junior Subordinated Debentures to be distributed to the
holders of the Capital Securities and the Common Securities in
liquidation of the Trust. See "Description of Capital Securities
- -- Redemption -- Special Event Redemption or Distribution of
Junior Subordinated Debentures."
In the event of the liquidation of the Trust, after
satisfaction of the claims of creditors of the Trust, if any, as
provided by applicable law, the holders of the Capital Securities
will be entitled to receive a liquidation amount of $1,000 per
Capital Security plus accumulated and unpaid Distributions
thereon to the date of payment, which may be in the form of a
distribution of such amount in Junior Subordinated Debentures as
described above. If such liquidation amount can be paid only in
part because the Trust has insufficient assets available to pay
in full the aggregate liquidation amount, then the amounts
payable directly by the Trust on the Capital Securities shall be
paid on a pro rata basis. The holder(s) of the Common Securities
will be entitled to receive distributions upon any such
liquidation pro rata with the holders of the Capital Securities,
except that if an Indenture Event of Default (as defined herein)
has occurred and is continuing, the Capital Securities will have
a priority over the Common Securities. See "Description of
Capital Securities -- Liquidation Distribution Upon Dissolution."
Based on interpretations by the staff of the Securities and
Exchange Commission (the "Commission"), as set forth in no-action
letters issued to third parties, the Company and the Trust
believe that the New Securities issued pursuant to the Exchange
Offer may be offered for resale, resold or otherwise transferred
by holders thereof (other than any holder that is an "affiliate"
of the Company or the Trust as defined in Rule 405 under the
Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act; provided
that such New Securities are acquired in the ordinary course of
such holders' business and such holders are not engaged in, and
do not intend to engage in, a distribution of such New Securities
and have no arrangement or understanding with any person to
participate in the distribution of such New Securities. However,
the staff of the Commission has not considered the Exchange Offer
in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer as in such other
circumstances. By tendering the Old Capital Securities in
exchange for New Capital Securities, each holder, other than a
broker-dealer, will represent to the Company and the Trust that:
(i) it is not an affiliate of the Company or the Trust (as
defined in Rule 405 under the Securities Act); (ii)
any New Capital Securities to be received by it are being
acquired in the course of its ordinary business; and (iii) it is
not engaged in, and does not intend to engage in, a distribution
of the New Capital
3
<PAGE>
Securities and has no arrangement or understanding with any
person to participate in a distribution (within the meaning of
the Securities Act) of the New Capital Securities.
Each broker-dealer that receives New Capital Securities for
its own account pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such New Capital Securities. The Letter of Transmittal states
that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This
Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales
of New Capital Securities received in exchange for Old Capital
Securities where such Old Capital Securities were acquired by
such broker-dealer as a result of market-making activities or
other trading activities. The Company and the Trust have agreed
that, starting on the date on which the Exchange Offer is
consummated and ending on the close of business one year after
such date, they will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
In that regard, each Exchanging Dealer (as defined herein)
who surrenders Old Capital Securities pursuant to the Exchange
Offer will be deemed to have agreed, by execution of the Letter
of Transmittal or by delivery of an Agent's Message (as defined
herein), that, upon receipt of notice from the Company or the
Trust of the occurrence of any event or the discovery of any fact
which makes any statement contained or incorporated by reference
in this Prospectus untrue in any material respect or which causes
this Prospectus to omit to state a material fact necessary in
order to make the statements contained or incorporated by
reference herein, in the light of the circumstances under which
they were made, not misleading, or of the occurrence of certain
other events specified in the Registration Rights Agreement, such
Exchanging Dealer will suspend the sale of New Securities
pursuant to this Prospectus until the Company or the Trust has
amended or supplemented this Prospectus to correct such
misstatement or omission and has furnished copies of the amended
or supplemented Prospectus to such Exchanging Dealer, or the
Company or the Trust has given notice that the sale of the New
Securities may be resumed, as the case may be.
Prior to the Exchange Offer, there has been only a limited
secondary market and no public market for the Old Capital
Securities. The New Capital Securities will be a new issue of
securities for which there currently is no market. The New
Capital Securities will not be listed on a securities exchange
and there can be no assurance as to the development or liquidity
of any market for the New Capital Securities.
Any Old Capital Securities not tendered and accepted in the
Exchange Offer will remain outstanding and will be entitled to
all the same rights and will be subject to the same limitations
applicable thereto under the Declaration (except for those rights
which terminate upon consummation of the Exchange Offer).
Following consummation of the Exchange Offer, the holders of Old
Capital Securities will continue to be subject to all of the
existing restrictions upon transfer thereof and neither the
Company nor the Trust will have any further obligation to such
holders (other than under certain limited circumstances) to
provide for registration under the Securities Act of the Old
Capital Securities held by them. To the extent that Old Capital
Securities are tendered and accepted in the Exchange Offer, a
holder's ability to sell untendered Old Capital Securities could
be adversely affected. See "Risk Factors -- Consequences of a
Failure to Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES
ARE URGED TO READ THIS PROSPECTUS AND THE RELATED LETTER OF
TRANSMITTAL CAREFULLY
4
<PAGE>
BEFORE DECIDING WHETHER TO TENDER THEIR OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or
prior to 5:00 p.m., New York City time, on _____________, 1997
(such time on such date being hereinafter called the "Expiration
Date"), unless the Exchange Offer is extended by the Company and
the Trust (in which case the term "Expiration Date" shall mean
the latest date and time to which the Exchange Offer is
extended). Tenders of Old Capital Securities may be withdrawn at
any time on or prior to the Expiration Date. The Exchange Offer
is not conditioned upon any minimum liquidation amount of Old
Capital Securities being tendered for exchange. However, the
Exchange Offer is subject to certain events and conditions which
may be waived by the Company or the Trust and to the terms and
provisions of the Registration Rights Agreement. Old Capital
Securities may be tendered in whole or in part. The Company has
agreed to pay all expenses of the Exchange Offer, except as
otherwise specified herein. See "The Exchange Offer -- Fees and
Expenses." The New Capital Securities will pay cumulative
distributions from the most recent Distribution Payment Date (as
defined herein) on the Old Capital Securities surrendered in
exchange for such New Capital Securities or, if no distributions
have been paid on such Old Capital Securities, from June 3, 1997.
Holders of the Old Capital Securities whose Old Capital
Securities are accepted for exchange will not receive accumulated
distributions on such Old Capital Securities for any period from
and after the last Distribution Payment Date on such Old Capital
Securities prior to the original issue date of the New Capital
Securities or, if no such distributions have been paid, will not
receive any accumulated distributions on such Old Capital
Securities, and will be deemed to have waived the right to
receive any distributions on such Old Capital Securities
accumulated from and after such Distribution Payment Date or, if
no such distributions have been paid or duly provided for, from
and after June 3, 1997. This Prospectus, together with the Letter
of Transmittal, is being sent to all registered holders of Old
Capital Securities as of _________, 1997.
Neither the Company nor the Trust will receive any cash
proceeds from the issuance of the New Capital Securities offered
hereby. No dealer-manager is being used in connection with the
Exchange Offer. See "Use of Proceeds" and "Plan of Distribution."
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE
COMPANY OR THE TRUST ACCEPT SURRENDERS FOR EXCHANGE FROM, HOLDERS
OF OLD CAPITAL SECURITIES IN ANY JURISDICTION IN WHICH THE
EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN
COMPLIANCE WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH
JURISDICTION.
EACH EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL
RETIREMENT ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH, A "PLAN"), ANY
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF
ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND
EACH PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR
HOLD THE CAPITAL SECURITIES OR ANY INTEREST THEREIN, IF SUCH
PURCHASE OR HOLDING IS ELIGIBLE FOR THE EXEMPTIVE RELIEF PROVIDED
BY U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR
HOLDING, ANY PURCHASER OR HOLDER OF THE CAPITAL SECURITIES OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT EITHER (A) THE PURCHASER AND
HOLDER IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING
SUCH SECURITIES ON BEHALF OF OR WITH
5
<PAGE>
"PLAN ASSETS" OF ANY PLAN OR (B) THE PURCHASE AND HOLDING OF
THE CAPITAL SECURITIES IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING.
SEE "TRANSFER RESTRICTIONS" AND "ERISA CONSIDERATIONS."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information
filed by the Company with the Commission pursuant to the
informational requirements of the Exchange Act may be inspected
and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Chicago Regional Office, Suite 1400, Citicorp
Center, 14th Floor, 500 West Madison Street, Chicago, Illinois
60661; and New York Regional Office, 7 World Trade Center, 13th
Floor, Suite 1300, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Public
Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549. The Commission also
maintains a Web site (http://www.sec.gov) that contains reports,
proxy statements and other information regarding the Company. In
addition, such reports, proxy statements and other information
can be inspected at The New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, on which the common stock of
the Company is listed.
This Prospectus constitutes a part of a registration
statement on Form S-4 (the "Registration Statement") filed by the
Company and the Trust with the Commission under the Securities
Act. This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the
Commission, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further
information with respect to the Company, the Trust and the New
Securities. Any statements contained herein concerning the
provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in
its entirety by such reference.
No separate financial statements of the Trust have been
included or incorporated by reference herein. The Company does
not believe such financial statements would be material to
holders of the Capital Securities because (i) all of the Common
Securities of the Trust will be owned, directly or indirectly, by
the Company, a reporting company under the Exchange Act, (ii) the
Trust is a newly formed special purpose entity, has no operating
history or independent operations but exists for the sole purpose
of issuing securities representing undivided beneficial interests
in its assets and investing the proceeds thereof in Junior
Subordinated Debentures issued by the Company, and (iii) the
obligations of the Trust under the Capital Securities are
guaranteed by the Company to the extent described herein. See
"Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee."
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 and the Company's Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1997 and June 30,
6
<PAGE>
1997, previously filed by the Company with the Commission, are
incorporated by reference in this Prospectus and shall be deemed
to be a part hereof.
Each document filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of this Prospectus and prior to the
termination of any offering of securities made by this Prospectus
shall be deemed to be incorporated herein by reference and to be
a part hereof from the date of filing such document. Any
statement contained herein, or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes
of the Registration Statement and this Prospectus to the extent
that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THE COMPANY WILL
PROVIDE WITHOUT CHARGE TO ANY PERSON TO WHOM A COPY OF THIS
PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST, A COPY OF
ANY AND ALL OF THE DOCUMENTS THAT HAVE BEEN OR MAY BE
INCORPORATED BY REFERENCE HEREIN (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
INTO SUCH DOCUMENTS). THESE DOCUMENTS ARE AVAILABLE UPON REQUEST
FROM GREENPOINT FINANCIAL CORP., ATTN. CHIEF FINANCIAL OFFICER,
90 PARK AVENUE, NEW YORK, NEW YORK 10016, TELEPHONE (212)
834-1711. IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS,
ANY REQUEST SHOULD BE MADE BY ______ __, 1997, FIVE BUSINESS DAYS
PRIOR TO THE EXPIRATION DATE.
7
<PAGE>
SUMMARY
This summary is qualified by the more detailed information
and financial statements appearing elsewhere, or incorporated by
reference, in this Prospectus. Prospective investors are urged to
read this Prospectus in its entirety.
The Company
The Company is a bank holding company organized under the
laws of the state of Delaware and registered under the Bank
Holding Company Act of 1956. The Company provides a variety of
financial services, primarily through its bank subsidiary,
GreenPoint Bank, a New York State chartered savings bank (the
"Bank") and the Bank's wholly owned subsidiary, GreenPoint
Mortgage Corp. ("GPMC"), a national home mortgage lender
headquartered in Charlotte, North Carolina.
The Bank is supervised and examined by the New York State
Superintendent of Banks and the Federal Deposit Insurance
Corporation. The Bank operates 74 full-service branches in the
greater metropolitan New York City area. The Bank attracts retail
deposits from the public and invests those deposits, together
with funds generated from operations, in mortgage loans and
marketable securities. Its revenues are derived principally from
interest on its loan portfolio and investment securities.
Through the Bank and GPMC, the Company is primarily engaged
in mortgage lending in New York and across the nation. The
Company originates both adjustable-rate mortgage and fixed-rate
loans, primarily through a network of mortgage brokers, mortgage
bankers, attorneys and other real estate professionals and to a
lesser extent, from customers and members of the local
communities in the Company's lending area. The Company
specializes in a limited documentation mortgage loan product ("No
Doc" and "Low Doc" loans) which serves a particular niche of
borrowers willing to pay a premium, in the form of higher
interest rates and loan fees, and provide larger down payments in
exchange for more expedient loan processing by virtue of
providing less income and asset information as compared to loans
underwritten in conformance with Federal National Mortgage
Association ("FNMA") standards. In 1996, the Company's No Doc
lending program accounted for 93.4% of loan originations. As
compared to other lending institutions which rely more heavily
upon a borrower's income and demonstrated ability to repay the
loan, the Company may be more susceptible to increases in loan
delinquencies in periods of economic recession and to loan losses
in periods of declining real estate market values. As a result of
the Low Doc/No Doc lending strategy, the Company has
traditionally achieved higher interest margins and levels of net
interest income than those generated by lenders that concentrate
on FNMA conforming loans. This, in turn, has resulted in a
relatively high level of profitability despite traditionally
higher levels of loan delinquencies. During 1996, the Company
expanded its lending program to new markets in northern New
Jersey, Chicago, Boston, Philadelphia, Washington, D.C. and
Miami. Although the Company believes that it has implemented
appropriate underwriting and credit quality controls in these new
markets, there can of course be no assurance that the Company's
experience in these areas will be as favorable as it has been in
New York.
The Company maintains its principal executive offices at 90
Park Avenue, New York, New York 10016, telephone (212) 834-1711.
The Exchange Offer
The Exchange Offer.... Up to $200,000,000 aggregate liquidation
amount of New Capital Securities are being
offered in exchange for a like aggregate
liquidation amount of Old Capital
Securities. Old Capital Securities
8
<PAGE>
may be tendered for exchange, in whole or
in part. The Company and the Trust are
making the Exchange Offer in order to
satisfy their obligations under the
Registration Rights Agreement relating to
the Old Capital Securities. For a
description of the procedures for
tendering Old Capital Securities, see
"The Exchange Offer -- Procedures for
Tendering Old Capital Securities."
Expiration Date....... The Expiration Date of the Exchange
Offer will be 5:00 p.m.,
New York City time, on _________, 1997,
unless the Exchange Offer is extended
by the Company and the Trust. See "The
Exchange Offer -- Expiration Date;
Extensions; Amendments."
Conditions to the
Exchange Offer...... The Exchange Offer is subject to
certain conditions, which may
be waived by the Company and the Trust
in their sole discretion.
The Exchange Offer is not
conditioned upon any minimum
liquidation amount of Old Capital
Securities being tendered. See
"The Exchange Offer -- Conditions to
the Exchange Offer."
The Company and the Trust reserve the
right in their sole discretion, subject
to applicable law, at any time and from
time to time, (i) to delay the acceptance
of the Old Capital Securities for
exchange, (ii) to terminate the Exchange
Offer if certain specified events have
occurred, (iii) to extend the Expiration
Date of the Exchange Offer and retain all
Old Capital Securities tendered pursuant
to the Exchange Offer, subject, however,
to the right of holders of Old Capital
Securities to withdraw their tendered Old
Capital Securities, or (iv) to waive any
condition or otherwise amend the terms of
the Exchange Offer in any respect. See
"The Exchange Offer -- Expiration Date;
Extensions; Amendments."
Withdrawal Rights.... Tenders of Old Capital Securities may
be withdrawn at any time on or
prior to the Expiration Date by
delivering a written notice of such
withdrawal to The Bank of New York, as
Exchange Agent (the "Exchange Agent"), in
conformity with certain procedures set
forth below under "The Exchange Offer --
Withdrawal Rights."
Procedures for
Tendering Old Capital
Securities .......... Tendering holders of Old
Capital Securities must complete and sign
a Letter of Transmittal in accordance
with the instructions contained therein
and forward the same by mail, facsimile
or hand delivery, together with any other
required documents, to the Exchange
Agent, either with the Old Capital
Securities to be tendered or in
compliance with the specified procedures
for guaranteed delivery of Old Capital
Securities. Certain brokers, dealers,
commercial banks, trust companies and
other nominees
9
<PAGE>
may also effect tenders by book-entry
transfer, including an Agent's Message in
lieu of the Letter of Transmittal.
Holders of Old Capital Securities
registered in the name of a broker,
dealer, commercial bank, trust company or
other nominee are urged to contact such
person promptly if they wish to tender
Old Capital Securities pursuant to the
Exchange Offer. See "The Exchange Offer
-- Procedures for Tendering Old Capital
Securities."
Letters of Transmittal and certificates
representing Old Capital
Securities should not be sent to the
Company or the Trust. Such
documents should only be sent to
the Exchange Agent. Questions regarding
how to tender and requests for information
should be directed to the Exchange Agent.
See "The Exchange
Offer -- Exchange Agent."
Resales of
New Capital
Securities .......... Based on interpretations by the
staff of the Commission as set forth in
no-action letters issued to third parties, the Company
and the Trust believe that the New Securities issued
pursuant to the Exchange Offer may be offered
for resale, resold or otherwise transferred
by holders thereof (other than any holder that is
an "affiliate" of the Company or the Trust as defined
in Rule 405 under the Securities Act)
without compliance with the registration and
prospectus delivery provisions of the Securities
Act; provided that such New Securities are
acquired in the ordinary course of such holders'
business and such holders are not engaged in,
and do not intend to engage in, a distribution of
such New Securities and have no arrangement or
understanding with any person to participate in
the distribution of such New Securities.
However, the staff of the Commission has not considered
the Exchange Offer in the context of a no-action
letter, and there can be no assurance that
the staff of the Commission would make a
similar determination with respect to the Exchange
Offer as in such other circumstances. By tendering
the Old Capital Securities in exchange for New Capital
Securities, each holder, other than a broker-dealer,
will represent to the Company and the Trust that:
(i) it is not an affiliate of the Company or
the Trust (as defined in Rule 405 under the Securities
Act); (ii) any New Capital Securities to be received by
it are being acquired in the course of its ordinary
business; and (iii) it is not engaged in, and does not
intend to engage in, a distribution of the New Capital
Securities and has no arrangement or understanding with
any person to participate in a distribution
(within the meaning of the Securities Act) of the New
Capital Securities.
Each broker-dealer that receives New Capital
Securities for its own account pursuant
to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of
such New Capital Securities. The Letter
of Transmittal states that by so
acknowledging and by delivering a
prospectus, a broker-dealer will not be
deemed to admit that it is an
10
<PAGE>
"underwriter" within the meaning of the
Securities Act. This Prospectus, as it
may be amended or supplemented from time
to time, may be used by a broker-dealer
in connection with resales of New Capital
Securities received in exchange for Old
Capital Securities where such Old Capital
Securities were acquired by such
broker-dealer as a result of
market-making activities or other trading
activities. The Company and the Trust
have agreed that, starting on the date on
which the Exchange Offer is consummated
and ending on the close of business one
year after such date, they will make this
Prospectus available to any broker-dealer
for use in connection with any such
resale. See "Plan of Distribution."
In that regard, each Exchanging Dealer
who surrenders Old Capital Securities
pursuant to the Exchange Offer will be
deemed to have agreed, by execution of
the Letter of Transmittal or delivery of
an Agent's Message, that, upon receipt of
notice from the Company or the Trust of
the occurrence of any event or the
discovery of any fact which makes any
statement contained or incorporated by
reference in this Prospectus untrue in
any material respect or which causes this
Prospectus to omit to state a material
fact necessary in order to make the
statements contained or incorporated by
reference herein, in the light of the
circumstances under which they were made,
not misleading, or of the occurrence of
certain other events specified in the
Registration Rights Agreement, such
Exchanging Dealer will suspend the sale
of New Securities pursuant to this
Prospectus until the Company or the Trust
has amended or supplemented this
Prospectus to correct such misstatement
or omission and has furnished copies of
the amended or supplemented Prospectus to
such Exchanging Dealer, or the Company or
the Trust has given notice that the sale
of the New Securities may be resumed, as
the case may be.
Exchange Agent....... The Exchange Agent is The Bank of New York.
The address and telephone and facsimile
numbers of the Exchange Agent are set
forth under "The Exchange Offer --
Exchange Agent" and in the
Letter of Transmittal.
Use of Proceeds...... Neither the Company
nor the Trust will receive any cash
proceeds from the issuance of the New
Capital Securities offered hereby. The
Old Capital Securities surrendered in
exchange for the New Capital Securities
will be retired and canceled. See "Use of
Proceeds."
Certain Federal Income Tax
Consequences; ERISA
Considerations....... Holders of Old Capital Securities should
carefully review the information set
forth under "Certain United States
Federal Income Tax Consequences" and
"ERISA Considerations" prior to tendering
Old Capital Securities in the Exchange
Offer.
11
<PAGE>
The Capital Securities
The Exchange Offer applies to the Old Securities. The terms
of the New Securities are identical in all material respects to
the respective terms of the Old Securities, except that (i) the
New Securities have been registered under the Securities Act and
therefore will not be subject to certain restrictions on transfer
applicable to the Old Securities, (ii) the New Capital Securities
will not provide for any increase in the distribution rate
thereon, and (iii) the New Junior Subordinated Debentures will
not provide for any increase in the interest rate thereon. In the
event that the Exchange Offer is consummated, any Old Capital
Securities which remain outstanding after consummation of the
Exchange Offer will vote together with the New Capital Securities
issued in the Exchange Offer as a single class for purposes of
determining whether holders of the requisite percentage in
outstanding liquidation amount thereof have taken certain actions
or exercised certain rights under the Declaration.
Securities Offered... 9.10% New Capital Securities
evidencing undivided beneficial ownership
interests in the assets of the Trust. The
Holder thereof will be entitled to a
preference in certain circumstances with
respect to Distributions and amounts
payable on redemption, liquidation or
otherwise over the Common Securities.
Distributions........ Holders of the Capital Securities are
entitled to receive cumulative cash
distributions at an annual rate of 9.10%
of the liquidation amount of $1,000 per
Capital Security, accruing from June 3,
1997, the date of original issuance of
the Old Capital Securities, and payable
semi-annually in arrears on the 1st day
of June and December of each year
commencing on December 1, 1997. The
distribution rate and the distribution
and other payment dates for the Capital
Securities correspond to the interest
rate and interest and other payment dates
on the Junior Subordinated Debentures.
See "Description of Capital Securities."
Junior Subordinated
Debentures .......... The Trust has invested the proceeds from
the issuance of the Old Capital Securities and
Common Securities in an equivalent amount of Old
Junior Subordinated Debentures of the
Company, which such amount of Old Junior
Subordinated Debentures will be exchanged
for New Junior Subordinated Debentures in
the Exchange Offer. The Junior
Subordinated Debentures will mature on
June 1, 2027. The Junior Subordinated
Debentures rank subordinate and junior in
right of payment to all Indebtedness of
the Company. In addition, the Company's
obligations under the Junior Subordinated
Debentures are structurally subordinated
to all existing and future liabilities
and obligations of its subsidiaries. See
"Risk Factors -- Ranking of
Subordinate Obligations Under the
Guarantee and the Junior Subordinated
Debentures", "Risk Factors -- Status of
Company as Holding Company" and
"Description of Junior Subordinated
Debentures -- Subordination."
12
<PAGE>
Guarantee............ Payment of distributions out of moneys
held by the Trust, and payments on liquidation
of the Trust or the redemption of Capital
Securities, are guaranteed by the Company
to the extent the Trust has funds available therefor.
If the Company does not make principal or
interest payments on the Junior Subordinated
Debentures, the Trust will not have sufficient
funds to make Distributions on the Capital
Securities, in which event the Guarantee shall not
apply to such Distributions until the Trust has
sufficient funds available therefor. The Company's
obligations under the Guarantee, taken together
with its obligations under the Junior Subordinated
Debentures and the Indenture, including its
obligation to pay all costs, expenses and liabilities
of the Trust (other than with respect to the Capital
Securities), constitute a full and unconditional
guarantee of all of the Trust's obligations
under the Capital Securities. See "Description
of Guarantee" and "Relationship Among the Capital
Securities, the Junior Subordinated Debentures
and the Guarantee." The obligations of
the Company under the Guarantee are
subordinate and junior in right of payment to all
Indebtedness of the Company. See "Risk
Factors -- Ranking of Subordinated
Obligations Under the Guarantee and the Junior
Subordinated Debentures" and
"Description of Guarantee."
Right to Defer
Interest ............ The Company has the
right to defer payment of interest on the
Junior Subordinated Debentures by
extending the interest payment period on
the Junior Subordinated Debentures, from
time to time, for up to 10 consecutive
semi-annual periods. There could be
multiple Extension Periods of varying
lengths throughout the term of the Junior
Subordinated Debentures. If interest
payments on the Junior Subordinated
Debentures are so deferred,
distributions on the Capital
Securities will also be deferred for an
equivalent period and the Company may
not, and may not permit any subsidiary of
the Company to, (i) declare or pay any
dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation
payment with respect to, the Company's
capital stock or (ii) make any payment of
principal, interest or premium, if any,
on or repay, repurchase or redeem any
debt securities that rank pari passu with
or junior to the Junior Subordinated
Debentures or make any guarantee payments
with respect to any guarantee by the
Company of the debt securities of any
subsidiary of the Company if such
guarantee ranks pari passu with or junior
to the Junior Subordinated Debentures
(other than (a) repurchases, redemptions
or other acquisitions of shares of
capital stock of the Company in
connection with any employment contract,
benefit plan or other similar arrangement
with or for the benefit of any one or
more employees, officers, directors or
consultants, or in connection with a
dividend reinvestment or stockholder
stock purchase plan, (b) as a result of
an exchange or conversion of any class or
series of the Company's capital stock (or
any capital stock of a
13
<PAGE>
subsidiary of the Company) for any class or
series of the Company's capital stock or of any
class or series of the Company's indebtedness
for any class or series of the Company's
capital stock, (c) the purchase of
fractional interests in shares of the
Company's capital stock pursuant to the
conversion or exchange provisions of such
capital stock or the security being
converted or exchanged, (d) any
declaration of a dividend in connection
with any stockholder's rights plans, or
the issuance of rights, stock or other
property under any stockholder's rights
plan, or the redemption or repurchase of
rights pursuant thereto, or (e) any
dividend in the form of stock, warrants,
options or other rights where the
dividend stock or the stock issuable upon
exercise of such warrants, options or
other rights is the same stock as that on
which the dividend is being paid (or
ranks pari passu with or junior to such
stock). During an Extension Period,
interest on the Junior Subordinated
Debentures will continue to accrue (and
the amount of Distributions to which
holders of the Capital Securities are
entitled will accumulate) at the rate of
9.10% per annum, compounded semi-annually
to the extent permitted by applicable
law. During an Extension Period, holders
of Capital Securities will be required to
include the stated interest (and de
minimis OID, if any) on their pro rata
share of the Junior Subordinated
Debentures in their gross income as
original issue discount ("OID") even
though the cash payments attributable
thereto have not been made. See
"Description of Junior Subordinated
Debentures -- Option to Extend Interest
Payment Period" and "Certain United
States Federal Income Tax Consequences --
Interest Income and Original Issue
Discount."
Redemption........... The Junior Subordinated Debentures are redeemable
by the Company in whole or in part on
or after June 1, 2007, or at any
time, in whole but not in part, upon the occurrence
of a Special Event, in either case
subject to any necessary prior approval of
the Federal Reserve. If the Junior
Subordinated Debentures are redeemed,
the Trust must redeem Trust Securities having an
aggregate liquidation amount equal to the
aggregate principal amount of the Junior
Subordinated Debentures so redeemed. The
Trust Securities will be redeemed upon maturity
of the Junior Subordinated Debentures. See
"Description of Capital Securities
-- Redemption -- Mandatory Redemption"
and "-- Special Event Redemption or
Distribution of Junior Subordinated
Debentures."
Liquidation of
the Trust ............. The Company has the right at any time,
subject to any necessary prior approval
of the Federal Reserve, to dissolve the Trust
and after satisfaction of the claims of creditors
of the Trust, if any, as provided by
applicable law cause the Junior
Subordinated Debentures to be distributed
to the holders of the Capital Securities
and the Common Securities in liquidation
of the Trust. See "Description of Capital
Securities -- Redemption -- Special
14
<PAGE>
Event Redemption or Distribution of Junior
Subordinated Debentures."
In the event of the liquidation
of the Trust, after satisfaction of
the claims of creditors of the
Trust, if any, as provided by
applicable law, the holders of the
Capital Securities will be
entitled to receive a liquidation
amount of $1,000 per Capital
Security plus accumulated and unpaid
Distributions thereon to the date of
payment, which may be in the form
of a distribution of such amount in
Junior Subordinated Debentures as
described above. If such Liquidation
Distribution (as defined herein) can be
paid only in part because the Trust
has insufficient assets available
to pay in full the aggregate
Liquidation Distribution, then the
amounts payable directly by the
Trust on the Capital Securities
shall be paid on a pro rata basis.
The holder(s) of the Common
Securities will be entitled to
receive distributions upon any
such liquidation pro rata with
the holders of the Capital
Securities, except that if an
Indenture Event of Default has
occurred and is continuing, the
Capital Securities shall have a
priority over the Common Securities.
See "Description of Capital
Securities -- Liquidation
Distribution Upon Dissolution."
Ratings............. It is expected that the New
Capital Securities will be rated "ba1"
by Moody's Investors Service, Inc.,
"BB" by Standard & Poor's
Ratings Services and "BBB--"
by Duff & Phelps Credit Rating
Co. A security rating is not
a recommendation to buy, sell or
hold securities and may be subject
to revision or withdrawal at
any time by the assigning rating
organization.
Absence of Market
for New Capital
Securities ........... The New Capital Securities
will be a new issue of securities for
which there is currently no market. The
New Capital Securities will not be listed
on a national securities exchange and
there can be no assurance as to the
development or liquidity of any market
for the New Capital Securities.
15
<PAGE>
RISK FACTORS
Prior to tendering Old Capital Securities in the Exchange
Offer, holders of the Old Capital Securities should carefully
review the information contained elsewhere in this Prospectus and
should particularly consider the following matters. To the extent
any of the information contained or incorporated by reference in
this Prospectus constitutes a "forward-looking statement" as
defined in Section 21E(i)(1) of the Exchange Act, the risk
factors set forth below are cautionary statements identifying
important factors that could cause actual results to differ
materially from those in the forward-looking statement.
Ranking of Subordinated Obligations under the Guarantee and the
Junior Subordinated Debentures
The obligations of the Company under the Guarantee issued
by the Company for the benefit of the holders of Capital
Securities and under the Junior Subordinated Debentures are
unsecured and rank subordinate and junior in right of payment to
all Indebtedness of the Company. At June 30, 1997, the
Indebtedness of the Company aggregated approximately $236
million. Neither the Indenture, the Guarantee nor the Declaration
(as defined herein) places any limitation on the amount of
secured or unsecured Indebtedness that may be incurred by the
Company. See "Description of Guarantee -- Status of the
Guarantee" and "Description of Junior Subordinated Debentures --
Subordination."
Status of Company as Holding Company
As a holding company, the ability of the Company to make
payments of interest and principal on the Junior Subordinated
Debentures will be dependent primarily upon the receipt of
dividends and other distributions from the Company's principal
subsidiaries, the Bank and its principal subsidiary, GPMC. There
are various regulatory restrictions on the ability of the Bank to
pay dividends or make other payments to the Company. At June 30,
1997, the Bank could pay an aggregate of $95.5 million in
dividends to the Company without prior regulatory approval. In
addition, the right of the Company to participate in any
distribution of assets of any subsidiary, including the Bank,
upon such subsidiary's liquidation or reorganization or otherwise
(and thus the ability of holders of the Capital Securities to
benefit indirectly from such distribution), will be subject to
the prior claims of creditors of that subsidiary, except to the
extent that any claims of the Company as a creditor of such
subsidiary may be recognized as such. Accordingly, the Capital
Securities will effectively be subordinated to all existing and
future liabilities and obligations of the Company's subsidiaries,
and holders of the Capital Securities should look only to the
assets of the Company for payments on the Capital Securities. As
of June 30, 1997, the Company's subsidiaries had indebtedness and
other liabilities of approximately $507 million.
Enforcement of Certain Rights by Holders of Capital Securities
If a Trust Enforcement Event (as defined herein) occurs and
is continuing, then the holders of Capital Securities would rely
on the enforcement by the Property Trustee (as defined herein) of
its rights as a holder of the Junior Subordinated Debentures
against the Company. The holders of a majority in liquidation
amount of the Capital Securities will have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee or to direct the
exercise of any trust or power conferred upon the Property
Trustee under the Declaration, including the right to direct the
Property Trustee to exercise the remedies available to it as a
holder of the Junior Subordinated Debentures. If the Property
Trustee fails to enforce its rights with respect to the Junior
Subordinated Debentures held by the Trust, any record holder of
Capital Securities may, to the fullest extent permitted by law,
institute legal proceedings directly against the Company to
enforce the Property Trustee's rights
16
<PAGE>
under such Junior Subordinated Debentures without first
instituting any legal proceedings against such Property Trustee
or any other person or entity.
If the Company were to default on its obligation to pay
amounts payable under the Junior Subordinated Debentures, the
Trust would lack funds for the payment of Distributions or
amounts payable on redemption of the Capital Securities or
otherwise, and, in such event, holders of the Capital Securities
would not be able to rely upon the Guarantee for payment of such
amounts. However, in the event the Company failed to pay interest
on or principal of the Junior Subordinated Debentures on the
payment date on which such payment is due and payable, then a
holder of Capital Securities may directly institute a proceeding
against the Company under the Indenture for enforcement of
payment to such holder of the interest on or principal of such
Junior Subordinated Debentures having a principal amount equal to
the aggregate liquidation amount of the Capital Securities of
such holder (a "Direct Action"). In connection with such Direct
Action, the Company will be subrogated to the rights of such
holder of Capital Securities under the Declaration to the extent
of any payment made by the Company to such holder of Capital
Securities in such Direct Action. Except as set forth herein,
holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of Junior
Subordinated Debentures or assert directly any other rights in
respect of the Junior Subordinated Debentures. See "Description
of Capital Securities -- Enforcement of Certain Rights by Holders
of Capital Securities", "Description of Guarantee" and
"Description of Junior Subordinated Debentures Indenture Events
of Default." The Declaration provides that each holder of Capital
Securities by acceptance thereof agrees to the provisions of the
Guarantee and the Indenture.
Option to Extend Interest Payment Period; Tax Consequences
The Company has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debentures at any
time or from time to time for a period not exceeding 10
consecutive semi-annual periods, provided that no Extension
Period may extend beyond the Stated Maturity of the Junior
Subordinated Debentures. As a consequence of any such deferral,
semi-annual Distributions on the Capital Securities by the Trust
will be deferred during any such Extension Period but would
continue to accumulate at the rate of 9.10% per annum, compounded
semi-annually during any such Extension Period. During any such
Extension Period, the Company may not, and may not permit any
subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital
stock or (ii) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities of
the Company that rank pari passu with or junior to the Junior
Subordinated Debentures or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of
any subsidiary of the Company if such guarantee ranks pari passu
with or junior to the Junior Subordinated Debentures (other than
(a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or
consultants, or in connection with a dividend reinvestment or
stockholder stock purchase plan, (b) as a result of an exchange
or conversion of any class or series of the Company's capital
stock (or any capital stock of a subsidiary of the Company) for
any class or series of the Company's capital stock or of any
class or series of the Company's indebtedness for any class or
series of the Company's capital stock, (c) the purchase of
fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholder's
rights plans, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that
on which the
17
<PAGE>
dividend is being paid (or ranks pari passu with or
junior to such stock). Prior to the termination of any such
Extension Period, the Company may further extend the Extension
Period, provided that no Extension Period may exceed 10
consecutive semi-annual periods or extend beyond the Stated
Maturity of the Junior Subordinated Debentures. Upon the
termination of any Extension Period and the payment of all
amounts then due on any Interest Payment Date, the Company may
elect to begin a new Extension Period subject to the above
requirements. See "Description of Capital Securities --
Distributions" and "Description of Junior Subordinated Debentures
- -- Option to Extend Interest Payment Period."
Should the Company defer payment of interest on the Junior
Subordinated Debentures, a holder of Capital Securities will be
required to accrue income (in the form of OID) for United States
federal income tax purposes in respect of its pro rata share of
the Junior Subordinated Debentures held by the Trust. As a
result, a holder of Capital Securities will include such income
in gross income for United States federal income tax purposes in
advance of the receipt of cash attributable to such interest
income, and will not receive the cash related to such income from
the Trust if the holder disposes of the Capital Securities prior
to the record date for the payment of Distributions with respect
to such Extension Period. See "Certain United States Federal
Income Tax Consequences -- Interest Income and Original Issue
Discount" and "-- Sales of Capital Securities."
The Company has no current intention of exercising its
right to defer payments of interest by extending the interest
payment period on the Junior Subordinated Debentures. However,
should the Company elect to exercise such right in the future,
the market price of the Capital Securities is likely to be
adversely affected. A holder that disposes of its Capital
Securities during an Extension Period, therefore, might not
receive the same return on its investment as a holder that
continues to hold its Capital Securities. In addition, as a
result of the Company's right to defer interest payments, the
market price of the Capital Securities (which represent preferred
undivided beneficial interests in the Junior Subordinated
Debentures) may be more volatile than the market prices of other
similar securities where the issuer does not have such right to
defer interest payments.
Special Event Redemption
Upon the occurrence and continuation of a Special Event,
the Company has the right, subject to any necessary prior
approval of the Federal Reserve, to redeem the Junior
Subordinated Debentures in whole (but not in part) within 90 days
following the occurrence of such Special Event and thereby cause
a mandatory redemption of the Capital Securities and Common
Securities. A "Special Event" means a Tax Event, a Regulatory
Capital Event or an Investment Company Event (each as defined
herein).
Liquidation Distribution of Junior Subordinated Debentures
The Company has the right, at any time, subject to any
necessary prior approval of the Federal Reserve, to dissolve the
Trust and after satisfaction of claims of creditors of the Trust,
if any, as provided by applicable law cause the Junior
Subordinated Debentures to be distributed to the holders of the
Capital Securities and the Common Securities in liquidation of
the Trust. In addition, upon liquidation of the Trust and certain
other events, the Junior Subordinated Debentures may be
distributed to such holders. Under current United States federal
income tax law and interpretations thereof and assuming, as
expected, the Trust is treated as a grantor trust for United
States federal income tax purposes, a distribution by the Trust
of the Junior Subordinated Debentures pursuant to a liquidation
of the Trust will not be a taxable event to the Trust or to
holders of the Capital Securities, and will result in a holder of
the Capital Securities receiving directly such holder's pro rata
share of the Junior Subordinated Debentures (previously held
indirectly through the Trust). If, however, the liquidation of
the Trust were to occur because the Trust is subject to United
States federal income tax with respect to income accrued or
18
<PAGE>
received on the Junior Subordinated Debentures as a result of the
occurrence of a Tax Event or otherwise, the distribution of
Junior Subordinated Debentures to holders of the Capital
Securities by the Trust could be a taxable event to the Trust and
each holder, and holders of the Capital Securities could be
required to recognize gain or loss as if they had exchanged their
Capital Securities for the Junior Subordinated Debentures they
received upon the liquidation of the Trust. See "Certain United
States Federal Income Tax Consequences -- Distribution of Junior
Subordinated Debentures or Cash Upon Liquidation of the Trust."
There can be no assurance as to the market prices for
Capital Securities or Junior Subordinated Debentures that may be
distributed in exchange for Capital Securities if a liquidation
of the Trust occurs. Accordingly, the Capital Securities that an
investor may purchase, whether in the Exchange Offer, the
secondary market or otherwise, or the Junior Subordinated
Debentures that a holder of Capital Securities may receive on
liquidation of the Trust, may trade at a discount to the price
that the investor paid to purchase the Capital Securities.
Because holders of Capital Securities may receive Junior
Subordinated Debentures on termination of the Trust, purchasers
of Capital Securities are also making an investment decision with
regard to the Junior Subordinated Debentures and should carefully
review all the information regarding the Junior Subordinated
Debentures contained herein. See "Description of Capital
Securities -- Redemption -- Special Event Redemption or
Distribution of Junior Subordinated Debentures" and "Description
of Junior Subordinated Debentures -- General."
Limited Voting Rights
Holders of Capital Securities generally will have limited
voting rights relating only to the modification of the Capital
Securities and certain other matters described herein. Holders of
Capital Securities will not be entitled to vote to appoint,
remove or replace any of the Trustees (as defined below), which
voting rights are vested exclusively in the holder of the Common
Securities. The Trustees and the Company may amend the
Declaration without the consent of holders of Capital Securities
to ensure that the Trust will be classified as a grantor trust
for United States federal income tax purposes even if such action
adversely affects the interests of such holders. See "Description
of Capital Securities -- Voting Rights; Amendment of the
Declaration."
Bank Regulatory Restrictions on Operations of the Trust
Because the Trust is a subsidiary of the Company, federal
banking authorities have the right to examine the Trust and its
activities. Under certain circumstances, including any
determination that the Company's relationship to the Trust
results in an unsafe and unsound banking practice, such banking
authorities will have the authority to issue orders which could
restrict the ability of the Trust to make distributions on or to
redeem the Capital Securities.
Absence of Public Market; Restrictions on Transfer
The Old Capital Securities are currently trading on the
PORTAL market. Prior to this Exchange Offer there has been no
public market for the New Capital Securities, however, and there
can be no assurance that such a market will develop. The New
Capital Securities will not be listed on any securities exchange.
The Initial Purchasers have previously advised the Company that
they intend to make a market in the Old Capital Securities;
however, the Initial Purchasers are not obligated to do so,
and may discontinue any such market-making activities at any time
without notice. The Initial Purchasers have also advised the
Company that they intend to make a market in the New Capital
Securities after the consummation of this Exchange Offer, as
permitted by applicable laws and regulations; however, the
Initial Purchasers are not obligated to do so, and may
discontinue any such
19
<PAGE>
market-making activities at any time without notice. Such
market-making activity will be subject to the limits imposed by
the Securities Act and the Exchange Act and may be limited during
the Exchange Offer. Therefore, there can be no assurance that an
active market for the Old Capital Securities or the New Capital
Securities will continue or develop, as the case may be. If a
trading market for the Capital Securities does develop, the
Capital Securities may trade at a discount from their initial
offering price depending upon prevailing interest rates, the
market for similar securities, the performance of the Company and
other factors.
The Old Capital Securities have not been registered under
the Securities Act and may only be offered or sold pursuant to an
exemption from the registration requirements of the Securities
Act and applicable state securities laws or pursuant to an
effective registration statement under the Securities Act and
applicable state securities laws. Notwithstanding the
registration under the Securities Act of the New Capital
Securities in the Exchange Offer, which will generally permit
such New Capital Securities to be resold or otherwise transferred
without further registration under the Securities Act, holders
who are "affiliates" of the Company or the Trust within the
meaning of Rule 405 under the Securities Act may publicly offer
for sale or resell the New Capital Securities only in compliance
with such registration requirements or the provisions of Rule 144
under the Securities Act. Each tendering holder of the Old
Capital Securities will be deemed to have made certain
acknowledgments, representations and agreements in relation to
its affiliate status. In addition, each broker-dealer that
receives New Capital Securities for its own account pursuant to
the Exchange Offer, where the corresponding Old Capital
Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with
any resale of such New Capital Securities. See "Plan of
Distribution."
Consequences of Highly Leveraged Transaction
The Indenture does not contain any provisions that afford
holders of the Junior Subordinated Debentures protection in the
event of a highly leveraged transaction, including a change of
control, or other similar transactions involving the Company that
may adversely affect such holders. See "Description of the Junior
Subordinated Debentures."
Guarantee Covers Distributions Only to the Extent the Trust
Has Sufficient Funds
The following payments with respect to the Capital
Securities, to the extent not paid by or on behalf of the Trust
(the "Guarantee Payments"), will be subject to the Guarantee: (i)
any accumulated and unpaid Distributions required to be paid on
the Capital Securities, to the extent that the Trust has
sufficient funds available therefor at the time, (ii) the
redemption price with respect to any Capital Securities called
for redemption, to the extent that the Trust has sufficient funds
available therefor at such time, or (iii) upon a voluntary or
involuntary dissolution, winding up or liquidation of the Trust
(unless the Junior Subordinated Debentures are distributed to
holders of the Capital Securities), the lesser of (a) the
aggregate liquidation amount of the Capital Securities and all
accrued and unpaid Distributions thereon to the date of payment
and (b) the amount of assets of the Trust remaining available for
distribution to holders of Capital Securities. The Company's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of
the applicable Capital Securities or by causing the Trust to pay
such amounts to such holders.
The Guarantee is an irrevocable guarantee on a subordinated
basis of the Trust's obligations under the Capital Securities,
but applies only to the extent that the Trust has sufficient
funds available to make such payments.
20
<PAGE>
Consequences of Failure to Exchange Old Capital Securities
The Old Capital Securities have not been registered under
the Securities Act or any state securities laws and therefore may
not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities
Act and any other applicable securities laws, or pursuant to an
exemption therefrom or in a transaction not subject thereto, and
in each case in compliance with certain other conditions and
restrictions. Old Capital Securities which remain outstanding
after consummation of the Exchange Offer will continue to bear a
legend reflecting such restrictions on transfer. In addition,
upon consummation of the Exchange Offer, holders of Old Capital
Securities which remain outstanding will not be entitled to any
rights to have such Old Capital Securities registered under the
Securities Act or to any similar rights under the Registration
Rights Agreement (subject to certain limited exceptions). The
Company and the Trust do not intend to register under the
Securities Act any Old Capital Securities which remain
outstanding after consummation of the Exchange Offer (subject to
such limited exceptions, if applicable).
To the extent that Old Capital Securities are tendered and
accepted in the Exchange Offer, a holder's ability to sell
untendered Old Capital Securities could be adversely affected. In
addition, any trading market for Old Capital Securities which
remain outstanding after the Exchange Offer (including the PORTAL
market) could be adversely affected.
The New Capital Securities and any Old Capital Securities
which remain outstanding after consummation of the Exchange Offer
will constitute a single series of Capital Securities under the
Declaration and, accordingly, will vote together as a single
class for purposes of determining whether holders of the
requisite percentage in outstanding liquidation amount thereof
have taken certain actions or exercised certain rights under the
Declaration. See "Description of Capital Securities."
Exchange Offer Procedures
Issuance of the New Capital Securities in exchange for Old
Capital Securities pursuant to the Exchange Offer will be made
only after a timely receipt by the Exchange Agent of such Old
Capital Securities, a properly completed and duly executed Letter
of Transmittal or Agent's Message in lieu thereof and all other
required documents. Therefore, holders of the Old Capital
Securities desiring to tender such Old Capital Securities in
exchange for New Capital Securities should allow sufficient time
to ensure timely delivery. Neither the Company, the Trust nor the
Exchange Agent is under any duty to give notification of defects
or irregularities with respect to the tenders of Old Capital
Securities for exchange.
USE OF PROCEEDS
Neither the Company nor the Trust will receive any cash
proceeds from the issuance of the New Capital Securities offered
hereby. In consideration for issuing the New Capital Securities
in exchange for the Old Capital Securities as described in this
Prospectus, the Trust will receive Old Capital Securities in like
liquidation amount. The Old Capital Securities surrendered in
exchange for the New Capital Securities will be retired and
canceled.
All of the proceeds from the sale of the Old Capital
Securities and the Common Securities were invested by the Trust
in Junior Subordinated Debentures. The Company has used and
expects to use the proceeds from the sale of such Junior
Subordinated Debentures for general corporate purposes, which may
include the repurchase of stock and the financing of possible
acquisitions. The Company regularly explores opportunities for
acquisitions of and holds discussions with financial institutions
and related businesses,
21
<PAGE>
and also regularly explores opportunities for acquisitions
of liabilities and assets of financial institutions, and other
financial services providers. Pending such use, the net proceeds
may be temporarily invested in short-term obligations. See
"Capitalization." The precise amounts and timing of the
application of proceeds will depend upon the funding requirements
of the Company and its subsidiaries and the availability of other
funds.
RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Company's consolidated ratios of earnings to combined
fixed charges and preferred stock dividends requirements for each
of the periods indicated are set forth below:
Six Months Six Months
Ended Year Ended Ended Year Ended
June 30, December 31, December 31, June 30,
-------- ------------ --------- ---------
1997 1996 1996 1995 1994 1993 1993 1992
---- ---- ---- ---- ---- ---- ---- ----
Excluding
interest
on deposits..33.34x 56.92x 68.89x 193.62x 528.25x 488.50x 577.33x 571.40x
Including
interest
on deposits.. 1.53x 1.40x 1.42x 1.57x 1.93x 1.85x 1.71x 1.47x
For purposes of computing the ratio of earnings to combined
fixed charges and preferred stock dividend requirements, earnings
represents net income plus applicable income taxes, fixed charges
and preferred stock dividend requirements of a consolidated
subsidiary. Fixed charges, excluding interest expense on
deposits, represent interest expense on long-term debt and
one-third (the portion deemed to be representative of the
interest factor) of rents. Fixed charges, including interest
expense on deposits, represent interest expense on long-term
debt, one-third (the portion deemed to be representative of the
interest factor) of rents and interest expense on deposits.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated
as a wholly-owned subsidiary of the Company and, accordingly, the
accounts of the Trust will be included in the consolidated
financial statements of the Company. The sole assets of the Trust
will be $206,185,567 aggregate principal amount of 9.10% Junior
Subordinated Debentures with a maturity date of June 1, 2027
issued by the Company to the Trust. The Capital Securities will
be presented in the consolidated statements of condition of the
Company as a separate line item in the liability section under
the caption "Guaranteed Preferred Beneficial Interests in
Company's Junior Subordinated Debentures" and appropriate
disclosures about the Capital Securities, the Guarantee and the
Junior Subordinated Debentures will be included in the notes to
the consolidated financial statements. For financial reporting
purposes, the Company will record Distributions payable on the
Capital Securities as interest expense in its consolidated
statements of income.
REGULATORY TREATMENT
The Company is required by the Federal Reserve to maintain
certain levels of capital for bank regulatory purposes. The
Company expects that the Capital Securities will be treated as
Tier 1 capital of the Company for such purposes.
22
<PAGE>
CAPITALIZATION
The following table sets forth the unaudited historical
consolidated capitalization of the Company and its subsidiaries
as of June 30, 1997. The issuance of the New Capital Securities
in the Exchange Offer will have no effect on the capitalization
of the Company.
(Dollars in Thousands)
Long-Term Debt
Guaranteed Preferred Beneficial Interests in
Company's Junior Subordinated Debentures (1) ... $ 199,717
Stockholders' Equity (2)
Capital ratios:
Tier 1 Capital ............................... 16.37%
Total Capital ................................ 17.62%
Tier 1 Leverage Ratio ........................ 7.95%
- ----------
(1) As described herein, the sole assets of the Trust are
$206,185,567 million principal amount of Junior
Subordinated Debentures issued by the Company to the Trust.
The Junior Subordinated Debentures will bear interest at
the rate of 9.10% per annum and will mature on June 1,
2027. The Company owns all of the Common Securities of the
Trust.
(2) In May, 1997, the Board of Directors of the Company
authorized the repurchase of up to $200 million of common
stock of the Company over an unspecified period, subject to
management's evaluation of market conditions and the
Company's financing needs.
THE TRUST
The Trust is a statutory business trust created under the
Delaware Business Trust Act, as amended (the "Trust Act"),
pursuant to a declaration of trust (as so amended and restated,
the "Declaration") and the filing of a certificate of trust with
the Secretary of State of the State of Delaware. The Company owns
Common Securities in an aggregate liquidation amount equal to at
least 3% of the total capital of the Trust. The Trust used all
the proceeds derived from the issuance of the Old Capital
Securities and the Common Securities to purchase the Old Junior
Subordinated Debentures and, accordingly, the assets of the Trust
consist solely of the Old Junior Subordinated Debentures. The
Trust exists for the exclusive purpose of (i) issuing the Trust
Securities representing undivided beneficial ownership interests
in the assets of the Trust, (ii) investing the gross proceeds of
the Trust Securities in the Junior Subordinated Debentures, and
(iii) engaging in only those other activities necessary or
incidental thereto.
Pursuant to the Declaration, there are two trustees (the
"Trustees") for the Trust. One trustee is a financial institution
that is unaffiliated with the Company (the "Property Trustee").
The other trustee is an entity that maintains its principal place
of business in the State of Delaware and otherwise meets the
requirements of applicable law (the "Delaware Trustee"). The Bank
of New York is acting as initial Property Trustee, and its
affiliate, The Bank of New York (Delaware), is acting as initial
Delaware Trustee, and each of them will continue to so act until
removed or replaced by the holder of the Common Securities. The
Bank of New York also acts as trustee under the Guarantee (the
"Guarantee Trustee").
23
<PAGE>
In addition, three individuals who are employees or officers of
or who are affiliated with the Company act as administrators of
the Trust (the "Administrators").
The Property Trustee holds title to the Junior Subordinated
Debentures for the benefit of the holders of the Trust
Securities, and the Property Trustee has the power to exercise
all rights, powers and privileges with respect to the Junior
Subordinated Debentures under the Indenture (as defined herein)
as the holder of the Junior Subordinated Debentures. In addition,
the Property Trustee maintains exclusive control of a segregated
non-interest bearing bank account (the "Property Account") to
hold all payments made in respect of the Junior Subordinated
Debentures for the benefit of the holders of the Trust
Securities. The Guarantee Trustee holds the Guarantee for the
benefit of the holders of the Capital Securities. The Company, as
the holder of all the Common Securities, has the right to
appoint, remove or replace any of the Trustees and to increase or
decrease the number of Trustees, provided that the number of
Trustees shall be at least two; provided further that at least
one Trustee shall be a Delaware Trustee and at least one Trustee
shall be the Property Trustee.
The Company, as borrower, has agreed to pay all fees and
expenses related to the organization and operations of the Trust
(including any taxes, duties, assessments or governmental charges
of whatever nature (other than withholding taxes) imposed by the
United States or any other domestic taxing authority upon the
Trust) and the offering of the Capital Securities and be
responsible for all debts and obligations of the Trust (other
than with respect to the Capital Securities).
For so long as the Capital Securities remain outstanding,
the Company will covenant (i) to maintain directly or indirectly
100% ownership of the Common Securities, (ii) to cause the Trust
to remain a statutory business trust and not to voluntarily
dissolve, wind-up, liquidate or be terminated, except as
permitted by the Declaration, (iii) to use its commercially
reasonable efforts to ensure that the Trust will not be an
"investment company" for purposes of the Investment Company Act
of 1940, as amended, and (iv) to take no action that would be
reasonably likely to cause the Trust to be classified as an
association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes.
The rights of the holders of the Capital Securities,
including economic rights, rights to information and voting
rights, are set forth in the Declaration and the Trust Indenture
Act. See "Description of Capital Securities." The Declaration and
the Guarantee also incorporate by reference the terms of the
Trust Indenture Act.
The location of the principal executive office of the Trust
is c/o GreenPoint Financial Corp., Attn. Chief Financial Officer,
90 Park Avenue, New York, New York 10016 and its telephone number
is (212) 834-1711.
THE EXCHANGE OFFER
Purpose and Effect of Exchange Offer
In connection with the sale of the Old Capital Securities,
the Company and the Trust entered into the Registration Rights
Agreement with the Initial Purchasers pursuant to which the
Company and the Trust agreed to file and to use their best
efforts to cause to be declared effective by the Commission a
registration statement with respect to the exchange of the Old
Capital Securities for capital securities which have been
registered under the Securities Act with terms identical in all
material respects to the terms of the Old Capital Securities
(except as described below). A copy of the Registration Rights
Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
24
<PAGE>
The Exchange Offer is being made to satisfy the contractual
obligations of the Company and the Trust under the Registration
Rights Agreement. The form and terms of the New Capital
Securities are the same in all material respects as the form and
terms of the Old Capital Securities, except that the New Capital
Securities (i) have been registered under the Securities Act and
therefore will not be subject to certain restrictions on transfer
applicable to the Old Capital Securities and (ii) will not
provide for any increase in the distribution rate thereon. The
Old Capital Securities provide, among other things, that if,
under certain circumstances as set forth in the Registration
Rights Agreement, the Exchange Offer is not consummated by the
30th business day after the date on which the Registration
Statement was declared effective by the Commission, the
distribution rate borne by the Old Capital Securities will
increase by 0.05% per annum, increasing by increments of 0.05%
each week but in no event greater than 0.25%, until the Exchange
Offer is consummated. Upon consummation of the Exchange Offer,
holders of Old Capital Securities that remain outstanding will
not be entitled to any increase in the distribution rate thereon
or any further registration rights under the Registration Rights
Agreement, except under limited circumstances. See "Risk Factors
- -- Consequences of a Failure to Exchange Old Capital Securities"
and "Description of Capital Securities."
The Exchange Offer is not being made to, nor will the Trust
or the Company accept tenders for exchange from, holders of Old
Capital Securities in any jurisdiction in which the Exchange
Offer or the acceptance thereof would not be in compliance with
the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder"
with respect to the Exchange Offer means any person in whose name
the Old Capital Securities are registered on the books of the
Trust or any other person who has obtained a properly completed
bond power from the registered holder, or any person whose Old
Capital Securities are held of record by The Depository Trust
Company ("DTC") who desires to deliver such Old Capital
Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Company will exchange
as soon as practicable after the date hereof all of the Old
Junior Subordinated Debentures, of which $206,185,567 aggregate
principal amount is outstanding, for a like aggregate principal
amount of the New Junior Subordinated Debentures. The New
Guarantee and the New Junior Subordinated Debentures have been
registered, to the extent required to be registered, under the
Securities Act.
Terms of Exchange
The Trust hereby offers, upon the terms and subject to the
conditions set forth in this Prospectus and in the accompanying
Letter of Transmittal, to exchange up to $200,000,000 aggregate
liquidation amount of New Capital Securities for a like aggregate
liquidation amount of Old Capital Securities properly tendered on
or prior to the Expiration Date and not properly withdrawn in
accordance with the procedures described below. The Trust will
issue, promptly after the Expiration Date, an aggregate
liquidation amount of up to $200,000,000 of New Capital
Securities in exchange for a like aggregate liquidation amount of
outstanding Old Capital Securities tendered and accepted in
connection with the Exchange Offer. Holders may tender their Old
Capital Securities in whole or in part.
The Exchange Offer is not conditioned upon any minimum
liquidation amount of Old Capital Securities being tendered. As
of the date of this Prospectus, $200,000,000 aggregate
liquidation amount of the Old Capital Securities is outstanding.
Holders of Old Capital Securities do not have any appraisal
or dissenters' rights in connection with the Exchange Offer. Old
Capital Securities which are not tendered for, or are tendered
but not
25
<PAGE>
accepted in connection with, the Exchange Offer will
remain outstanding and be entitled to the benefits of the
Declaration, but will not be entitled to any further registration
rights under the Registration Rights Agreement, except under
limited circumstances. See "Risk Factors -- Consequences of a
Failure to Exchange Old Capital Securities" and "Description of
Capital Securities."
If any tendered Old Capital Securities are not accepted for
exchange because of an invalid tender, the occurrence of certain
other events set forth herein or otherwise, certificates for any
such unaccepted Old Capital Securities will be returned, without
expense, to the tendering holder thereof promptly after the
Expiration Date.
Holders who tender Old Capital Securities in connection
with this Exchange Offer will not be required to pay brokerage
commissions or fees or, subject to the instructions in the Letter
of Transmittal, transfer taxes with respect to the exchange of
Old Capital Securities in connection with the Exchange Offer. The
Company will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the Exchange
Offer. See "-- Fees and Expenses."
NEITHER THE BOARD OF DIRECTORS OF THE COMPANY NOR ANY
ADMINISTRATOR OR TRUSTEE OF THE TRUST MAKES ANY RECOMMENDATION TO
HOLDERS OF OLD CAPITAL SECURITIES AS TO WHETHER TO TENDER OR
REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE
HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF
OLD CAPITAL SECURITIES MUST MAKE THEIR OWN DECISION WHETHER TO
TENDER PURSUANT TO THE EXCHANGE OFFER AND, IF SO, THE AGGREGATE
AMOUNT OF OLD CAPITAL SECURITIES TO TENDER AFTER READING THIS
PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH
THEIR ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND
REQUIREMENTS.
Expiration Date; Extension; Amendments
The term "Expiration Date" means 5:00 p.m., New York City
time, on ________, 1997, unless the Exchange Offer is extended by
the Company and the Trust (in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange
Offer is extended).
The Company and the Trust expressly reserve the right in
their sole discretion, subject to applicable law, at any time and
from time to time, (i) to delay the acceptance of the Old Capital
Securities for exchange, (ii) to terminate the Exchange Offer
(whether or not any Old Capital Securities have theretofore been
accepted for exchange) if the Company and the Trust determine, in
their sole discretion, that any of the events referred to under
"-- Conditions to the Exchange Offer" have occurred, (iii) to
extend the Expiration Date of the Exchange Offer, subject,
however, to the right of holders of Old Capital Securities to
withdraw their tendered Old Capital Securities as described under
"-- Withdrawal Rights," and (iv) to waive any condition or
otherwise amend the terms of the Exchange Offer in any respect.
If the Exchange Offer is amended in a manner determined by the
Company and the Trust to constitute a material change, or if the
Company and the Trust waive a material condition of the Exchange
Offer, the Company and the Trust will promptly disclose such
amendment by means of an amended or supplemented Prospectus that
will be distributed to the registered holders of the Old Capital
Securities,
and the Company and the Trust will extend the Exchange Offer to
the extent required by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or
amendment will be followed promptly by oral or written notice
thereof to the Exchange Agent and by making a public announcement
thereof,
26
<PAGE>
and such announcement in the case of an extension will
be made no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date.
Without limiting the manner in which the Company and the Trust
may choose to make any public announcement and subject to
applicable law, the Company and the Trust shall have no
obligation to publish, advertise or otherwise communicate any
such public announcement other than by issuing a release to an
appropriate news agency.
Acceptance for Exchange and Issuance of New Capital Securities
Upon the terms and subject to the conditions of the
Exchange Offer, the Trust will exchange, and will issue to the
Exchange Agent, New Capital Securities for Old Capital Securities
validly tendered and not withdrawn (pursuant to the withdrawal
rights described under "-- Withdrawal Rights") promptly after the
Expiration Date.
In all cases, delivery of New Capital Securities in
exchange for Old Capital Securities tendered and accepted for
exchange pursuant to the Exchange Offer will be made only after
timely receipt by the Exchange Agent of (i) Old Capital
Securities or a book-entry confirmation of a book-entry transfer
of Old Capital Securities into the Exchange Agent's account at
DTC, (ii) the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's
Message in lieu of the Letter of Transmittal, and (iii) any other
documents required by the Letter of Transmittal.
The term "book-entry confirmation" means a timely
confirmation of a book-entry transfer of Old Capital Securities
into the Exchange Agent's account at DTC. The term "Agent's
Message" means a message, transmitted by DTC to and received by
the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express
acknowledgment from the tendering Participant (as defined
herein), which acknowledgment states that such Participant has
received and agrees to be bound by the Letter of Transmittal and
that the Trust and the Company may enforce such Letter of
Transmittal against such Participant.
Subject to the terms and conditions of the Exchange Offer,
the Company and the Trust will be deemed to have accepted for
exchange, and thereby exchanged, Old Capital Securities validly
tendered and not withdrawn as, if and when the Trust gives oral
and written notice to the Exchange Agent of the Company's and the
Trust's acceptance of such Old Capital Securities for exchange
pursuant to the Exchange Offer. The Exchange Agent will act as
agent for the Company and the Trust for the purpose of receiving
tenders of Old Capital Securities, Letters of Transmittal and
related documents, and as agent for tendering holders for the
purpose of receiving Old Capital Securities, Letters of
Transmittal and related documents and transmitting New Capital
Securities to validly tendering holders. Such exchange will be
made promptly after the Expiration Date. If for any reason
whatsoever acceptance for exchange or the exchange of any Old
Capital Securities tendered pursuant to the Exchange Offer is
delayed (whether before or after the Company's and the Trust's
acceptance for exchange of Old Capital Securities) or the Company
and the Trust extend the Exchange Offer or are unable to accept
for exchange or exchange Old Capital Securities tendered pursuant
to the Exchange Offer, then, without prejudice to the Company's
and the Trust's rights set forth herein, the Exchange Agent may,
nevertheless, on behalf of the Company and the Trust and subject
to Rule 14e-1(c) under the Exchange Act, retain tendered Old
Capital Securities and such Old Capital Securities may not be
withdrawn except to the extent tendering holders are entitled to
withdrawal rights as described under "-- Withdrawal Rights."
Pursuant to the Letter of Transmittal or Agent's Message in
lieu thereof, a holder of Old Capital Securities will warrant and
agree that it has full power and authority to tender, exchange,
sell, assign and
27
<PAGE>
transfer Old Capital Securities, that the Trust will acquire
good, marketable and unencumbered title to the tendered Old
Capital Securities, free and clear of all liens, restrictions,
charges and encumbrances, and the Old Capital Securities tendered
for exchange are not subject to any adverse claims or proxies.
The holder also will warrant and agree that it will, upon
request, execute and deliver any additional documents deemed by
the Company, the Trust or the Exchange Agent to be necessary or
desirable to complete the exchange, sale, assignment and transfer
of the Old Capital Securities tendered pursuant to the Exchange
Offer.
Procedures for Tendering Old Capital Securities
Valid Tender. Except as set forth below, in order for Old
Capital Securities to be validly tendered pursuant to the
Exchange Offer, a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature
guarantees, or an Agent's Message in lieu of the Letter of
Transmittal, and any other required documents, must be received
by the Exchange Agent at its address set forth under "-- Exchange
Agent," on or prior to the Expiration Date and (i) tendered Old
Capital Securities must be received by the Exchange Agent, or
(ii) such Old Capital Securities must be tendered pursuant to the
procedures for book-entry transfer set forth below and a
book-entry confirmation, including an Agent's Message if the
tendering holder has not delivered a Letter of Transmittal, must
be received by the Exchange Agent, in each case on or prior to
the Expiration Date, or (iii) the guaranteed delivery procedures
set forth below must be complied with.
If less than all of the Old Capital Securities are
tendered, a tendering holder should fill in the amount of Old
Capital Securities being tendered in the appropriate box on the
Letter of Transmittal or so indicate in an Agent's Message in
lieu of the Letter of Transmittal. The entire amount of Old
Capital Securities delivered to the Exchange Agent will be deemed
to have been tendered unless otherwise indicated. See "-- Terms
of Exchange."
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER, AND DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF
DELIVERY IS BY MAIL, THEN REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Book-Entry Transfer. The Exchange Agent will establish an
account with respect to the Old Capital Securities at DTC for
purposes of the Exchange Offer within two business days after the
date of this Prospectus. Any financial institution that is a
Participant in DTC's book-entry transfer facility system may make
a book-entry delivery of the Old Capital Securities by causing
DTC to transfer such Old Capital Securities into the Exchange
Agent's account at DTC in accordance with DTC's procedures for
transfers. However, although delivery of Old Capital Securities
may be effected through book-entry transfer into the Exchange
Agent's account at DTC, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required
signature guarantees, or an Agent's Message in lieu of the Letter
of Transmittal, and any other required documents, must in any
case be delivered to and received by the Exchange Agent at its
address set forth under "-- Exchange Agent" on or prior to the
Expiration Date, or the guaranteed delivery procedure set forth
below must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
28
<PAGE>
Signature Guarantees. Certificates for the Old Capital
Securities need not be endorsed and signature guarantees on the
Letter of Transmittal are unnecessary unless (i) a certificate
for the Old Capital Securities is registered in a name other than
that of the person surrendering the certificate or (ii) such
registered holder completes the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the Letter of
Transmittal. In the case of (i) or (ii) above, such certificates
for Old Capital Securities must be duly endorsed or accompanied
by a properly executed bond power, with the endorsement or
signature on the bond power and on the Letter of Transmittal
guaranteed by a firm or other entity identified in Rule 17Ad-15
under the Exchange Act as an "eligible guarantor institution,"
including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union;
(iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that
is a participant in a Securities Transfer Association (an
"Eligible Institution"), unless surrendered on behalf of such
Eligible Institution. See Instruction 1 to the Letter of
Transmittal.
Guaranteed Delivery. If a holder desires to tender Old
Capital Securities pursuant to the Exchange Offer and the
certificates for such Old Capital Securities are not immediately
available or time will not permit all required documents to reach
the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a
timely basis, such Old Capital Securities may nevertheless be
tendered, provided that all of the following guaranteed delivery
procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form accompanying
the Letter of Transmittal, is received by the Exchange
Agent, as provided below, on or prior to the Expiration
Date; and
(iii) the certificates (or book-entry confirmation)
representing all tendered Old Capital Securities, in proper
form for transfer, together with a properly completed and
duly executed Letter of Transmittal (or facsimile thereof)
or, in the case of a book-entry transfer, an Agent's
Message in lieu thereof, with any required signature
guarantees and any other documents required by the Letter
of Transmittal are received by the Exchange Agent within
three New York Stock Exchange trading days after the date
of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand,
or transmitted by facsimile or mail, to the Exchange Agent, and
must include a guarantee by an Eligible Institution in the form
set forth in such notice.
Notwithstanding any other provisions hereof, the delivery of
New Capital Securities in exchange for Old Capital Securities
tendered and accepted for exchange pursuant to the Exchange Offer
will in all cases be made only after timely receipt by the
Exchange Agent of such Old Capital Securities, or of a book-entry
confirmation with respect to such Old Capital Securities, and a
properly completed and duly executed Letter of Transmittal (or
facsimile thereof) or, in the case of a book-entry transfer, an
Agent's Message in lieu thereof, together with any required
signature guarantees and any other documents required by the
Letter of Transmittal. Accordingly the delivery of New Capital
Securities might not be made to all tendering holders at the same
time, and will depend upon when Old Capital Securities,
book-entry confirmations with respect to Old Capital Securities
and other required documents are received by the Exchange Agent.
29
<PAGE>
The Company's and the Trust's acceptance for exchange of
Old Capital Securities tendered pursuant to any of the procedures
described above will constitute a binding agreement among the
tendering holder, the Company and the Trust upon the terms and
conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of
documents, validity, eligibility (including time of receipt) and
acceptance for exchange of any tendered Old Capital Securities
will be determined by the Company and the Trust, in their sole
discretion, whose determination shall be final and binding on all
parties. The Company and the Trust reserve the absolute right, in
their sole discretion, to reject any and all tenders determined
by them not to be in proper form or the acceptance of which may,
in the view of counsel to the Company or the Trust, be unlawful.
The Company and the Trust also reserve the absolute right,
subject to applicable law, to waive any of the conditions of the
Exchange Offer as set forth under "-- Conditions to the Exchange
Offer" or any condition or irregularity in any tender of Old
Capital Securities of any particular holder whether or not
similar conditions or irregularities are waived in the case of
other holders.
The Company's and the Trust's interpretation of the terms
and conditions of the Exchange Offer (including the Letter of
Transmittal and the instructions thereto) will be final and
binding. No tender of Old Capital Securities will be deemed to
have been validly made until all irregularities with respect to
such tender have been cured or waived. Neither the Company, the
Trust, any affiliates or assigns of the Company or the Trust, the
Exchange Agent nor any other person shall be under any duty to
give any notification of any irregularities in tenders or incur
any liability for failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power,
power of attorney or any other document required by the Letter of
Transmittal is signed by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, such
person should so indicate when signing, and, unless waived by the
Trust, proper evidence satisfactory to the Company and the Trust,
in their sole discretion, of such person's authority to so act
must be submitted.
A beneficial owner of Old Capital Securities that are held
by or registered in the name of a broker, dealer, commercial
bank, trust company or other nominee or custodian is urged to
contact such entity promptly if such beneficial holder wishes to
participate in the Exchange Offer.
Resales of New Capital Securities
Based on existing interpretations by the staff of the
Commission set forth in no-action letters to third parties, and
subject to the immediately following sentence, the Company and
the Trust believe that New Securities issued pursuant to the
Exchange Offer in exchange for Old Securities may be offered for
resale, resold and otherwise transferred by a holder thereof
without further compliance with the registration and prospectus
delivery requirements of the Securities Act, provided that such
New Securities are acquired in the ordinary course of such
holder's business and that such holder is not participating, and
has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the
Securities Act) of such New Securities. However, any holder of
Old Capital Securities who is an "affiliate" of either the
Company or the Trust, a broker-dealer that acquires the Old
Capital Securities in a transaction other than a part of its
market-making activities or other trading activities or other
holder who intends to participate in the Exchange Offer for the
purpose of distributing New Capital Securities (i) will not be
able to rely on the interpretations by the staff of the
Commission set forth in the above-mentioned interpretative
letters, (ii) will not be able to tender such Old Capital
Securities in the Exchange Offer, and (iii) must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with any sale or other transfer of
such Old Capital Securities unless such sale is made pursuant to
an exemption from such requirements. Neither the
30
<PAGE>
Company nor the Trust sought its own no-action letter and
there can be no assurance that the staff of the Commission would
make a similar determination with respect to the Exchange Offer
as it has in such no- action letters to third parties.
Each holder of Old Capital Securities (other than a
broker-dealer) who wishes to exchange Old Capital Securities for
New Capital Securities in the Exchange Offer will be required to
represent that (i) it is not an "affiliate" of the Company or the
Trust, (ii) any New Capital Securities to be received by it are
being acquired in the ordinary course of its business and (iii)
it has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the
Securities Act) of such New Capital Securities. The Letter of
Transmittal contains the foregoing representations. In addition,
the Company and the Trust may require such holder, as a condition
to such holder's eligibility to participate in the Exchange
Offer, to furnish to the Company and the Trust (or an agent
thereof) in writing information as to the number of "beneficial
owners" (within the meaning of Rule 13d-3 under the Exchange Act)
on behalf of whom such holder holds the Old Capital Securities to
be exchanged in the Exchange Offer. Each broker-dealer that
receives New Capital Securities pursuant to the Exchange Offer in
exchange for Old Capital Securities acquired for its own account
as a result of market-making activities or other trading
activities (an "Exchanging Dealer") must acknowledge by execution
of the Letter of Transmittal or, in the case of a book-entry
transfer, delivery of an Agent's Message that it acquired the Old
Capital Securities for its own account as the result of
market-making activities or other trading activities and must
agree that it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale of such New
Capital Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, an Exchanging
Dealer will not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act. Based on the position
taken by the staff of the Commission in the no-action letters
referred to above, the Company and the Trust believe that
Exchanging Dealers may fulfill their prospectus delivery
requirements with respect to the New Capital Securities received
upon exchange of such Old Capital Securities (other than Old
Capital Securities which represent an unsold allotment from the
original sale of the Old Capital Securities) with a prospectus
meeting the requirements of the Securities Act, which may be the
prospectus prepared for an exchange offer so long as it contains
a description of the plan of distribution with respect to the
resale of such New Capital Securities. Subject to certain
provisions set forth in the Registration Rights Agreement and to
the limitations set out herein, the Company and the Trust have
agreed that this Prospectus, as it may be amended or supplemented
from time to time, may be used by an Exchanging Dealer in
connection with resales of such New Capital Securities for a
period ending one year after the Expiration Date (or longer, if
required by the Registration Rights Agreement). See "Plan of
Distribution." Any person, including any Exchanging Dealer, who
is an "affiliate" of the Company or the Trust may not rely on
such no-action letters and must comply with the registration and
prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
In that regard, each Exchanging Dealer who surrenders Old
Capital Securities pursuant to the Exchange Offer will be deemed
to have agreed, by execution of the Letter of Transmittal or
delivery of the Agent's Message in lieu thereof, that, upon
receipt of notice from the Company or the Trust of the occurrence
of any event or the discovery of any fact which makes any
statement contained or incorporated by reference in this
Prospectus untrue in any material respect or which causes this
Prospectus to omit to state a material fact necessary in order to
make the statements contained or incorporated by reference
herein, in light of the circumstances under which they were made,
not misleading or of the occurrence of certain other events
specified in the Registration Rights Agreement, such Exchanging
31
<PAGE>
Dealer will suspend the sale of New Securities pursuant to this
Prospectus until the Company or the Trust has amended or
supplemented this Prospectus to correct such misstatement or
omission and has furnished copies of the amended or supplemented
Prospectus to such Exchanging Dealer or the Company or the Trust
has given notice that the sale of the New Securities may be
resumed, as the case may be.
Withdrawal Rights
Except as otherwise provided herein, tenders of Old Capital
Securities may be withdrawn at any time on or prior to the
Expiration Date.
In order for a withdrawal to be effective a written or
facsimile transmission of such notice of withdrawal must be
timely received by the Exchange Agent at its address set forth
under "-- Exchange Agent" on or prior to the Expiration Date. Any
such notice of withdrawal must specify the name of the person who
tendered the Old Capital Securities to be withdrawn, the
aggregate liquidation amount of Old Capital Securities to be
withdrawn and (if certificates for such Old Capital Securities
have been tendered) the name of the registered holder of the Old
Capital Securities as set forth on the Old Capital Securities, if
different from that of the person who tendered such Old Capital
Securities. If Old Capital Securities have been delivered or
otherwise identified to the Exchange Agent, then prior to the
physical release of such Old Capital Securities, the tendering
holder must submit the certificate numbers shown on the
particular Old Capital Securities to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an
Eligible Institution, except in the case of Old Capital
Securities tendered for the account of an Eligible Institution.
If Old Capital Securities have been tendered pursuant to the
procedures for book-entry transfers set forth in "-- Procedures
for Tendering Old Capital Securities," the notice of withdrawal
must specify the name and number of the account at DTC to be
credited with the withdrawal of Old Capital Securities, in which
case a notice of withdrawal will be effective if delivered to the
Exchange Agent by written, telegraphic, telex or facsimile
transmission. Withdrawals of tenders of Old Capital Securities
may not be rescinded. Old Capital Securities properly withdrawn
will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior
to the Expiration Date by following any of the procedures
described above under "-- Procedures for Tendering Old Capital
Securities."
All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be
determined by the Company and the Trust, in their sole
discretion, whose determination shall be final and binding on all
parties. Neither the Company, the Trust, any affiliates or
assigns of the Company or the Trust, the Exchange Agent nor any
other person shall be under any duty to give any notification of
any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any Old
Capital Securities which have been tendered but which are
withdrawn will be returned to the holder thereof promptly after
withdrawal.
Distributions on New Capital Securities
Holders of Old Capital Securities whose Old Capital
Securities are accepted for exchange will not receive accumulated
distributions on such Old Capital Securities for any period from
and after the last Distribution Payment Date with respect to such
Old Capital Securities prior to the original issue date of the
New Capital Securities or, if no such distributions have been
made, will not receive any accumulated distributions on such Old
Capital Securities, and will be deemed to have waived the right
to receive any distributions on such Old Capital Securities
accumulated from and after such Distribution Payment Date or, if
no such distributions have been made, from and after June 3,
1997.
Conditions to the Exchange Offer
32
<PAGE>
Notwithstanding any other provision of the Exchange Offer,
or any extension of the Exchange Offer, the Company and the Trust
will not be required to accept for exchange, or to exchange, any
Old Capital Securities for any New Capital Securities, and, as
described below, may terminate the Exchange Offer (whether or not
any Old Capital Securities have theretofore been accepted for
exchange) or may waive any conditions to or amend the Exchange
Offer, if because of any change in law, or applicable
interpretations thereof by the Commission, the Company or the
Trust determines that it is not permitted to effect the Exchange
Offer.
If the Company and the Trust determine in their sole
discretion that any of the foregoing events has occurred, the
Company and the Trust may, subject to applicable law, terminate
the Exchange Offer (whether or not any Old Capital Securities
have theretofore been accepted for exchange) or may waive any
condition to the Exchange Offer or otherwise amend the terms of
the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, the Company
and the Trust will promptly disclose such waiver or amendment by
means of an amended or supplemented Prospectus that will be
distributed to the registered holders of the Old Capital
Securities, and the Company and the Trust will extend the
Exchange Offer to the extent required by Rule 14e-1 under the
Exchange Act.
Exchange Agent
The Bank of New York has been appointed as Exchange Agent
for the Exchange Offer. Delivery of the Letters of Transmittal
and any other required documents, questions, requests for
assistance and requests for additional copies of this Prospectus
or of the Letter of Transmittal should be directed to the
Exchange Agent as follows:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Enrique Lopez,
Reorganization Section, Floor 7E
Telephone: (212) 815-2742
Facsimile: (212) 815-6339
Delivery to other than the above address or facsimile
number will not constitute a valid delivery.
Fees and Expenses
The Company has agreed to pay the Exchange Agent reasonable
and customary fees for its services and will reimburse it for its
reasonable and documented out-of-pocket expenses in connection
therewith. The Company will also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket
expenses incurred by them in forwarding copies of this Prospectus
and related documents to the beneficial owners of Old Capital
Securities, and in handling or tendering for their customers.
Holders who tender their Old Capital Securities for
exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to
be delivered to, or are to be issued in the name of, any person
other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other
than the exchange of Old Capital Securities in connection with
the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered holder or any other persons)
will be payable by the tendering holder. If satisfactory
33
<PAGE>
evidence of payment of such taxes or exemption therefrom is
not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed to such tendering holder.
Neither the Company nor the Trust will make any payment to
brokers, dealers or others soliciting acceptance of the Exchange
Offer.
DESCRIPTION OF CAPITAL SECURITIES
Pursuant to the terms of the Declaration, the Trust has
issued the Old Capital Securities and the Common Securities and
will issue the New Capital Securities. The Capital Securities
represent undivided beneficial ownership interests in the assets
of the Trust and the holders thereof are entitled to a preference
in certain circumstances with respect to Distributions and
amounts payable on redemption or liquidation over the Common
Securities, as well as other benefits as described in the
Declaration. This summary of certain provisions of the Capital
Securities and the Declaration does not purport to be complete
and is subject to, and is qualified in its entirety by reference
to, all the provisions of the Declaration, including the
definitions therein of certain terms, and the Trust Indenture
Act. Wherever particular defined terms of the Declaration (as
supplemented or amended from time to time) are referred to
herein, the definitions of such defined terms are incorporated
herein by reference.
General
The Capital Securities rank pari passu, and payments will
be made thereon pro rata, with the Common Securities except as
described under "-- Subordination of Common Securities." Legal
title to the Junior Subordinated Debentures is held by the
Property Trustee in trust for the benefit of the holders of the
Capital Securities and the Common Securities. The Guarantee
executed by the Company for the benefit of the holders of the
Capital Securities is a guarantee on a subordinated basis with
respect to the Capital Securities but does not guarantee payment
of Distributions or amounts payable on redemption or liquidation
of the Capital Securities when the Trust does not have sufficient
funds available to make such payments. See "Description of
Guarantee." The Company's obligations under the Guarantee, taken
together with its obligations under the Junior Subordinated
Debentures and the Indenture, including its obligation to pay all
costs, expenses and liabilities of the Trust (other than with
respect to the Capital Securities), constitute a full and
unconditional guarantee of all of the Trust's obligations under
the Capital Securities.
Holders of the Capital Securities have no preemptive or
similar rights.
Distributions
Distributions on each Capital Security are payable at the
annual rate of 9.10% of the liquidation amount of $1,000, payable
semi-annually in arrears on the 1st day of June and December of
each year. Distributions will accumulate from June 3, 1997, the
date of original issuance of the Old Capital Securities, and
commence on December 1, 1997. The amount of Distributions payable
for any period will be computed on the basis of a 360-day year of
twelve 30-day months.
Distributions on the Capital Securities must be paid on the
dates payable to the extent that the Trust has funds available
for the payment of such Distributions. The revenue of the Trust
available for distribution to holders of its Capital Securities
is limited to payments under the Junior Subordinated Debentures
owned by the Trust. See "Description of Junior Subordinated
Debentures." If the Company does not make interest payments on
the Junior Subordinated Debentures, the Property Trustee will not
have funds available to pay Distributions on the Capital
Securities.
34
<PAGE>
The Company has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debentures at any
time or from time to time for a period not exceeding ten
consecutive semi- annual periods (each, an "Extension Period"),
provided that no Extension Period may extend beyond the Stated
Maturity of the Junior Subordinated Debentures. Accordingly,
there could be multiple Extension Periods of varying lengths
throughout the term of the Junior Subordinated Debentures. As a
consequence of any such extension, semi-annual Distributions on
the Capital Securities will be deferred by the Trust during any
such Extension Period. Distributions to which holders of the
Capital Securities are entitled will accumulate and compound
semi-annually to the extent permitted by applicable law at the
rate per annum of 9.10% thereof from the relevant payment date
for such Distributions. The term "Distributions" as used herein
shall include any such compounded amounts unless the context
otherwise requires. During any such Extension Period, the Company
may not, and may not permit any subsidiary of the Company to, (i)
declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu
with or junior to the Junior Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Company
of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the
Junior Subordinated Debentures (other than (a) dividends or
distributions in common stock of the Company, (b) payments under
the Guarantee, (c) any declaration of a dividend in connection
with the implementation of a shareholders' rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, and
(d) purchases of common stock related to the issuance of common
stock or rights under any of the Company's benefit plans). Prior
to the termination of any such Extension Period, the Company may
further extend the Extension Period, provided that no Extension
Period may exceed 10 consecutive semi-annual periods or extend
beyond the Stated Maturity of the Junior Subordinated Debentures.
Upon the termination of any such Extension Period and the payment
of all amounts then due on any Interest Payment Date, the Company
may elect to begin a new Extension Period subject to the
foregoing requirements. See "Description of Junior Subordinated
Debentures -- Option to Extend Interest Payment Period." The
Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period of
the Junior Subordinated Debentures.
In the event that any date on which Distributions are
payable on the Capital Securities is not a Business Day, then
payment of the Distributions payable on such date will be made on
the next succeeding day that is a Business Day (and without any
additional Distributions or other payment in respect of any such
delay), with the same force and effect as if made on the date
such payment was originally payable (each date on which
Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other
than a Saturday or a Sunday, or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the
principal corporate trust office of the Property Trustee or the
Indenture Trustee (as defined herein) is closed for business.
Distributions on the Capital Securities (other than
distributions on a Redemption Date) will be payable to the
holders thereof as they appear on the register of the Trust on
the relevant record dates, which shall be the first day of the
month of the relevant Distribution Date. Distributions payable on
any Capital Securities that are not punctually paid on any
Distribution Date will cease to be payable to the person in whose
name such Capital Securities are registered on the relevant
record date, and such defaulted Distributions will instead be
payable to the person in whose name such Capital Securities are
registered on the special record date or other specified date
determined in accordance with the Declaration.
35
<PAGE>
Redemption
Mandatory Redemption. Unless a Special Event has occurred,
the Capital Securities will not be redeemable prior to June 1,
2007. Upon the repayment or redemption, in whole or in part, of
the Junior Subordinated Debentures, whether at Stated Maturity or
upon earlier redemption as provided in the Indenture, the
proceeds from such repayment or redemption shall be applied by
the Property Trustee to redeem Capital Securities and Common
Securities upon not less than 30 nor more than 60 days' notice
prior to the date fixed for repayment or redemption. If less than
all of the Junior Subordinated Debentures are to be repaid or
redeemed on a Redemption Date, then the proceeds from such
repayment or redemption shall be allocated to the redemption pro
rata of the Capital Securities and the Common Securities.
Special Event Redemption or Distribution of Junior
Subordinated Debentures. If a Special Event shall occur and be
continuing, the Company will have the right, subject to the
receipt of any necessary prior approval of the Federal Reserve,
to either (i) redeem within 90 days following the occurrence of
such Special Event the Junior Subordinated Debentures on the date
of redemption (the "Redemption Date") in whole (but not in part)
and thereby cause a mandatory redemption of the Capital
Securities in whole (but not in part) at a redemption price with
respect to the Capital Securities equal to the redemption price
in respect of the Junior Subordinated Debentures or (ii) dissolve
the Trust and, after satisfaction of the claims of creditors of
the Trust as provided by applicable law, cause the Junior
Subordinated Debentures to be distributed to the holders of the
Capital Securities in liquidation of the Trust. Under current
United States federal income tax law and interpretations thereof
and assuming, as expected, the Trust is treated as a grantor
trust, a distribution of the Junior Subordinated Debentures
should not be a taxable event to holders of the Capital
Securities. Should there be a change in law, a change in legal
interpretation, certain Tax Events or other circumstances,
however, the distribution could be a taxable event to holders of
the Capital Securities. See "Certain United States Federal Income
Tax Consequences -- Distribution of Junior Subordinated
Debentures or Cash upon Liquidation of the Trust."
If the Company does not elect either option described
above, the Capital Securities will remain outstanding until the
repayment of the Junior Subordinated Debentures, whether at
maturity or redemption, and in the event a Tax Event has occurred
and is continuing, the Company will be obligated to pay any
additional taxes, duties, assessments and other governmental
charges (other than withholding taxes) to which the Trust has
become subject as a result of a Tax Event.
A "Special Event" means a Tax Event, a Regulatory Capital
Event or an Investment Company Event. A "Tax Event" means the
receipt by the Company of an opinion of counsel, rendered by a
law firm having a recognized national tax practice, to the effect
that, as a result of any amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is
adopted or which proposed change, pronouncement or decision is
announced on or after May 29, 1997, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on
the Junior Subordinated Debentures, (ii) interest payable by the
Company on such Junior Subordinated Debentures is not, or within
90 days of the date of such opinion will not be, deductible by
the Company, in whole or in part, for United States federal
income tax purposes, or (iii) the Trust is, or will be within 90
days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental
charges. A "Regulatory Capital Event" means that the Company
36
<PAGE>
shall have received an opinion of independent bank regulatory
counsel experienced in such matters to the effect that, as a
result of (a) any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder)
of the United States or any rules, guidelines or policies of the
Federal Reserve or (b) any official administrative pronouncement
or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after June 3, 1997,
the Capital Securities do not constitute, or within 90 days of
the date thereof will not constitute, Tier I capital (or its then
equivalent); provided, however, that the distribution of the
Junior Subordinated Debentures in connection with the liquidation
of the Trust by the Company shall not in and of itself constitute
a Regulatory Capital Event unless such liquidation shall have
occurred in connection with a Tax Event or an Investment Company
Event. "Investment Company Event" means the receipt by the Trust
of an opinion of counsel, rendered by a law firm having a
recognized national securities practice, to the effect that, as a
result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or will be
considered an "investment company" that is required to be
registered under the Investment Company Act of 1940, as amended,
which Change in 1940 Act Law becomes effective on or after June
3, 1997.
Redemption Procedures
Capital Securities redeemed on each Redemption Date shall
be redeemed at the redemption price in respect of the Junior
Subordinated Debentures (the "Redemption Price") with the
applicable proceeds from the contemporaneous redemption or
payment at Stated Maturity of the Junior Subordinated Debentures.
Redemptions of the Capital Securities shall be made and the
Redemption Price shall be payable on each Redemption Date only to
the extent that the Trust has sufficient funds available for the
payment of such Redemption Price. See also "-- Subordination of
Common Securities."
Notice of any redemption will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each
holder of Capital Securities to be redeemed at its registered
address. If the Trust gives a notice of redemption in respect of
the Capital Securities, then, by 12:00 noon, New York
City time, on the Redemption Date, to the extent funds are
available, the Property Trustee will deposit irrevocably with DTC
or its nominee funds sufficient to pay the applicable Redemption
Price for all securities held in DTC and will give DTC
irrevocable instructions and authority to pay the Redemption
Price to the holders of the Capital Securities. See "--
Book-Entry Issuance." If any Capital Securities are held in
certificated form, the Trust, to the extent funds are available,
will irrevocably deposit with the paying agent for such Capital
Securities funds sufficient to pay the applicable Redemption
Price and will give the paying agent irrevocable instructions and
authority to pay the Redemption Price to the holders thereof upon
surrender of their certificates evidencing the Capital
Securities. Notwithstanding the foregoing, Distributions payable
on or prior to the Redemption Date for any Capital Security
called for redemption shall be payable to the holders of such
Capital Security on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given
and funds deposited as required, then upon the date of such
deposit, all rights of the holders of such Capital Securities so
called for redemption will cease, except the right of the holders
of such Capital Securities to receive the Redemption Price, but
without interest on such Redemption Price, and such Capital
Securities will cease to be outstanding. In the event that any
date fixed for redemption of Capital Securities is not a Business
Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally
payable. In the event that payment of the Redemption Price in
respect of Capital Securities called for redemption is improperly
withheld or refused and not paid either by the
37
<PAGE>
Trust or by the Company pursuant to the Guarantee as described
under "Description of Guarantee," Distributions on such Capital
Securities will continue to accrue at the then applicable rate,
from the Redemption Date originally established by the Trust for
the Capital Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the
date fixed for redemption for purposes of calculating the
Redemption Price.
Subject to applicable law (including, without limitation,
United States federal securities law), the Company or its
subsidiaries may at any time and from time to time purchase
outstanding Capital Securities by tender, in the open market or
by private agreement.
The Trust may not redeem fewer than all of the
outstanding Capital Securities unless all accrued and unpaid
distributions have been paid on all Capital Securities for all
semi-annual distribution periods terminating on or prior to the
date of redemption. If less than all of the Capital Securities
and Common Securities issued by the Trust are to be redeemed on a
Redemption Date, then the aggregate amount of such Capital
Securities and Common Securities to be redeemed shall be
allocated pro rata among the Capital Securities and the Common
Securities. If the Capital Securities are in book-entry form,
they will be redeemed as described below under "Book-Entry
Issuance." If not, the particular Capital Securities to be
redeemed shall be selected on a pro rata basis not more than 60
days prior to the Redemption Date by the Property Trustee from
the outstanding Capital Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
redemption of portions (equal to $1,000 or an integral multiple
of $1,000 in excess thereof) of the liquidation amount of Capital
Securities of a denomination larger than $1,000. The Property
Trustee shall promptly notify the Trust registrar in writing of
the Capital Securities selected for redemption and, in the case
of any Capital Security selected for partial redemption, the
liquidation amount thereof to be redeemed. For all purposes of
the Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Capital Securities shall
relate, in the case of any Capital Security redeemed or to be
redeemed only in part, to the portion of the aggregate
liquidation amount of Capital Securities which has been or is to
be redeemed.
Subordination of Common Securities
Payment of Distributions on, and the Redemption Price of,
the Capital Securities and the Common Securities, as applicable,
shall be made pro rata based on the liquidation amount of such
Capital Securities and Common Securities; provided, however, that
if on any Distribution Date or Redemption Date an Indenture Event
of Default shall have occurred and be continuing, no payment of
any Distribution on, or Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall
be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Capital Securities
for all Distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price the full amount of
such Redemption Price on all of the outstanding Capital
Securities then called for redemption, shall have been made or
provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all
Distributions on, or Redemption Price of, the Capital Securities
then due and payable.
Liquidation Distribution Upon Dissolution
Pursuant to the Declaration, the Trust shall automatically
dissolve upon expiration of its term and shall dissolve on the
first to occur of: (i) certain events of bankruptcy, dissolution
or liquidation of the Company; (ii) the distribution of the
Junior Subordinated Debentures to the holders of the Capital
Securities and Common Securities; (iii) the repayment of all of
the Capital Securities in connection with
38
<PAGE>
the maturity or redemption of all of the Junior Subordinated
Debentures; and (iv) the entry by a court of competent
jurisdiction of an order for the dissolution of the Trust.
If an early dissolution occurs as described in clause (i),
(ii) or (iv) above, the Trust shall be liquidated by the Trustees
as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of
the Trust, if any, as provided by applicable law, to the holders
of the Capital Securities and Common Securities their pro rata
interest in the Junior Subordinated Debentures, unless such
distribution is determined by the Property Trustee not to be
practicable, in which event such holders will be entitled to
receive out of the assets of the Trust available for distribution
to holders, after satisfaction of liabilities to creditors of the
Trust, if any, as provided by applicable law, an amount equal to,
in the case of holders of Capital Securities, the aggregate of
the liquidation amount plus accrued and unpaid Distributions
thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can
be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution,
then the amounts payable directly by the Trust on the Capital
Securities shall be paid on a pro rata basis. The holder(s) of
the Common Securities will be entitled to receive distributions
upon any such liquidation pro rata with the holders of the
Capital Securities, except that if an Indenture Event of Default
has occurred and is continuing, the Capital Securities shall have
a priority over the Common Securities.
After the liquidation date is fixed for any distribution of
Junior Subordinated Debentures to holders of the Capital
Securities (i) the Capital Securities will no longer be deemed to
be outstanding, (ii) DTC or its nominee, as a record holder of
Capital Securities, will receive a registered global certificate
or certificates representing the Junior Subordinated Debentures
to be delivered upon such distribution and (iii) any certificates
representing Capital Securities held in certificated form will be
deemed to represent Junior Subordinated Debentures having a
principal amount equal to the liquidation amount of such Capital
Securities, and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid Distributions on such Capital
Securities until such certificates are presented for cancellation
whereupon the Company will issue to such holder, and the
Indenture Trustee will authenticate, a certificate representing
such Junior Subordinated Debentures.
Trust Enforcement Events
An Indenture Event of Default constitutes a Trust
Enforcement Event under the Declaration with respect to the Trust
Securities, provided that pursuant to the Declaration, the holder
of the Common Securities will be deemed to have waived any Trust
Enforcement Event with respect to the Common Securities until all
Trust Enforcement Events with respect to the Capital Securities
have been cured, waived or otherwise eliminated. Until such Trust
Enforcement Event with respect to the Capital Securities has been
so cured, waived or otherwise eliminated, the Property Trustee
will be deemed to be acting solely on behalf of the holders of
the Capital Securities and only the holders of the Capital
Securities will have the right to direct the Property Trustee
with respect to certain matters under the Declaration, and
therefore the Indenture.
Upon the occurrence of a Trust Enforcement Event, the
Indenture Trustee (as defined herein) or the Property Trustee as
the holder of the Junior Subordinated Debentures will have the
right under the Indenture to declare the principal of and
interest on the Junior Subordinated Debentures to be immediately
due and payable. Each of the Company and the Trust is required to
file annually with the Property Trustee an officer's certificate
as to its compliance with all conditions and covenants under the
Declaration.
39
<PAGE>
If the Property Trustee fails to enforce its rights with
respect to the Junior Subordinated Debentures held by the Trust,
any record holder of Capital Securities may, to the fullest
extent permitted by law, institute legal proceedings directly
against the Company to enforce the Property Trustee's rights
under such Junior Subordinated Debentures without first
instituting any legal proceedings against such Property Trustee
or any other person or entity. In addition, if a Trust
Enforcement Event has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest,
principal or other required payments on the Junior Subordinated
Debentures issued to the Trust on the date such interest,
principal or other payment is otherwise payable, then a record
holder of Capital Securities may, on or after the respective due
dates specified in the Junior Subordinated Debentures, institute
a proceeding directly against the Company under the Indenture for
enforcement of payment on Junior Subordinated Debentures having a
principal amount equal to the aggregate liquidation amount of the
Capital Securities held by such holder. In connection with such
Direct Action, the Company will be subrogated to the rights of
such record holder of Capital Securities to the extent of any
payment made by the Company to such record holder of Capital
Securities.
Voting Rights; Amendment of the Declaration
Except as provided below and under "Description of
Guarantee -- Amendments and Assignment" and as otherwise required
by law and the Declaration, the holders of the Capital Securities
have no voting rights.
So long as any Junior Subordinated Debentures are held by
the Property Trustee, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy
available to the Indenture Trustee or executing any trust or
power conferred on the Property Trustee with respect to such
Junior Subordinated Debentures, (ii) waive any past default that
is waivable under the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the
Junior Subordinated Debentures shall be due and payable, or (iv)
consent to any amendment, modification or termination of
the Indenture or such Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the holders of a majority in aggregate
liquidation amount of all outstanding Capital Securities;
provided, however, that where a consent under the Indenture would
require the consent of each holder of Junior Subordinated
Debentures affected thereby, no such consent shall be given by
the Property Trustee without the prior consent of each holder of
Capital Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the
Capital Securities except pursuant to a subsequent vote of the
holders of the Capital Securities. The Property Trustee shall
notify each holder of record of the Capital Securities of any
notice of default which it receives with respect to the Junior
Subordinated Debentures. In addition to obtaining the foregoing
approvals of the holders of the Capital Securities, prior to
taking any of the foregoing actions, the Trustees shall receive
an opinion of counsel experienced in such matters to the effect
that the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes on account of
such action.
The Declaration may be amended from time to time by the
Company and the Property Trustee without the consent of the
holders of the Capital Securities, (i) to cure any ambiguity,
correct or supplement any provisions in the Declaration that may
be inconsistent with any other provision, or to make any other
provisions with respect to matters or questions arising under the
Declaration that shall not be inconsistent with the other
provisions of the Declaration or (ii) to modify, eliminate or add
to any provisions of the Declaration to such extent as shall be
necessary to ensure that the Trust will be classified as a
grantor trust for United States federal income tax purposes at
all times that any Capital Securities and Common Securities are
outstanding or to ensure that the Trust will not be required to
register as an "investment company" under the Investment Company
Act; provided, however, that such
40
<PAGE>
action shall not adversely affect in any material respect
the interests of any holder of Capital Securities or Common
Securities, and any amendments of the Declaration shall become
effective when notice thereof is given to the holders of Capital
Securities and Common Securities. The Declaration may be amended
by the Company and a majority of the Administrators with (i) the
consent of holders representing not less than a majority (based
upon liquidation amounts) of the outstanding Capital Securities
and Common Securities and (ii) receipt by the Administrators of
an opinion of counsel to the effect that such amendment or the
exercise of any power granted to the Administrators in accordance
with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or
the Trust's exemption from status as an "investment company"
under the Investment Company Act, provided, further that without
the consent of each holder of Capital Securities and Common
Securities affected thereby, the Declaration may not be amended
to (i) change the amount or timing of any Distribution on the
Capital Securities and Common Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Capital Securities and Common Securities as of a
specified date or (ii) restrict the right of a holder of Capital
Securities or Common Securities to institute suit for the
enforcement of any such payment on or after such date.
Any required approval of holders of Capital Securities may
be given at a meeting of holders of Capital Securities convened
for such purpose or pursuant to written consent. The
Administrators will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to
be taken, to be given to each holder of record of Capital
Securities in the manner set forth in the Declaration.
No vote or consent of the holders of Capital Securities
will be required for the Trust to redeem and cancel its Capital
Securities in accordance with the Declaration.
Notwithstanding that holders of Capital Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Capital Securities that are owned by
the Company, the Trustees or any affiliate of the Company or any
Trustees, shall, for purposes of such vote or consent, be treated
as if they were not outstanding.
Expenses and Taxes
In the Indenture, the Company, as borrower, has agreed to
pay all debts and other obligations (other than with respect to
the Capital Securities) and all costs and expenses of the Trust
(including costs and expenses relating to the organization of the
Trust, the fees and expenses of the Trustees and the costs and
expenses relating to the operation of the Trust) and to pay any
and all taxes and all costs and expenses with respect thereto
(other than United States withholding taxes) to which the Trust
might become subject. The foregoing obligations of the Company
under the Indenture are for the benefit of, and shall be
enforceable by, any person to whom any such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice thereof. Any such Creditor may
enforce such obligations of the Company directly against the
Company, and the Company has irrevocably waived any right or
remedy to require that any such Creditor take any action against
the Trust or any other person before proceeding against the
Company. The Company has also agreed in the Indenture to execute
such additional agreements as may be necessary or desirable to
give full effect to the foregoing.
Registrar and Transfer Agent
The Bank of New York will act as registrar and transfer
agent for the Capital Securities.
41
<PAGE>
Registration of transfers of Capital Securities will be
effected without charge by or on behalf of the Trust, but upon
payment of any tax or other governmental charges that may be
imposed in connection with any transfer or exchange. The Trust
will not be required (i) to register or cause to be registered
the transfer or exchange of the Capital Securities during a
period beginning at the opening of business 15 days before the
day of the mailing of the relevant notice of redemption and
ending at the close of business on the day of mailing of such
notice of redemption or (ii) to register or cause to be
registered the transfer or exchange of any Capital Securities so
selected for redemption, except in the case of any Capital
Securities being redeemed in part, any portion thereof not to be
redeemed.
Information Concerning the Property Trustee
The Property Trustee, other than during the occurrence and
continuance of a Trust Enforcement Event, undertakes to perform
only such duties as are specifically set forth in the Declaration
and, after such Trust Enforcement Event, must exercise the same
degree of care and skill as a prudent person would exercise or
use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the
request of any holder of Capital Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities
that might be incurred thereby. If no Trust Enforcement Event has
occurred and is continuing and the Property Trustee is required
to decide between alternative causes of action, is required to
construe ambiguous provisions in the Declaration or is unsure of
the application of any provision of the Declaration, and the
matter is not one on which holders of Capital Securities are
entitled under the Declaration to vote, then the Property Trustee
may, but shall be under no duty to, take such action as is
directed by the Company and, if not so directed, shall take such
action as it deems advisable and in the best interests of the
holders of the Capital Securities and the Common Securities and
will have no liability except for its own bad faith, negligence
or willful misconduct.
Payment and Paying Agency
Payments in respect of the Global Capital Securities (as
defined herein) shall be made to DTC, which shall credit the
relevant accounts at DTC on the applicable Distribution Dates or,
if the Capital Securities are held in certificated form, such
payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the
register maintained by the registrar. The paying agent (the
"Paying Agent") shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to
the Administrators and the Company. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice
to the Property Trustee and the Company. In the event that the
Property Trustee shall no longer be the Paying Agent, the
Administrators shall appoint a successor (which shall be a bank
or trust company acceptable to the Administrators and the
Company) to act as Paying Agent.
Mergers, Consolidations, Amalgamations or Replacements of the Trust
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other Person, except as described below or as
otherwise described in "Liquidation Distribution Upon
Dissolution." The Trust may, at the request of the Company, and
without the consent of the holders of the Capital Securities, the
Delaware Trustee or the Property Trustee, merge with or into,
consolidate, amalgamate, be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided
that (i) such successor entity (if not the Trust) either (a)
expressly assumes all of the obligations of the Trust with
respect to the Trust Securities or (b) substitutes for the
Capital Securities other securities having substantially the same
terms as the Capital
42
<PAGE>
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital Securities in
priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) if the Trust is not
the successor entity, the Company expressly appoints a trustee of
such successor entity possessing the same powers and duties as
the Property Trustee as the holder of the Junior Subordinated
Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of
the Capital Securities (including any Successor Securities) in
any material respect, (v) such successor entity has a purpose
substantially identical to that of the Trust, (vi) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Company has received an opinion from
independent counsel to the Trust experienced in such matters to
the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of
the Capital Securities (including any Successor Securities) in
any material respect and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or
lease, (1) neither the Trust nor such successor entity will be
required to register as an investment company under the
Investment Company Act and (2) the Trust or such successor entity
will continue to be classified as a grantor trust for United
States federal income tax purposes, (vii) the Company or any
permitted successor or assignee owns all of the common securities
of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the
extent provided by the Guarantee, and (viii) such successor
entity (if not the Trust) expressly assumes all of the
obligations of the Trust with respect to the Trustees.
Notwithstanding the foregoing, the Trust shall not, except with
the consent of holders of 100% in aggregate liquidation amount of
the Trust Securities, consolidate, amalgamate, merge with or
into, be replaced by or convey, transfer or lease its properties
and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust
or the successor entity to be classified as other than a grantor
trust for United States federal income tax purposes and each
holder of Trust Securities not to be treated as owning an
undivided interest in the Junior Subordinated Debentures.
Merger or Consolidation of Trustees
Any entity into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion
or consolidation to which such Trustee shall be a party, or any
entity succeeding to all or substantially all the corporate trust
business of such Trustee, shall be the successor of such Trustee
under the Declaration, provided such entity shall be otherwise
qualified and eligible.
Miscellaneous
The Administrators, the Property Trustee and the holders of
a majority of the Common Securities are authorized and directed
to conduct the affairs of and to operate the Trust in such a way
that the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified as other than a grantor trust for United States
federal income tax purposes and so that the Junior Subordinated
Debentures will be treated as indebtedness of the Company for
United States federal income tax purposes. In this connection,
the Company is authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or the Declaration,
that the Company determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not
materially adversely affect the interests of the holders of the
Capital Securities.
43
<PAGE>
The Trust may not borrow money, issue debt, or mortgage or
pledge any of its assets.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Old Junior Subordinated Debentures were issued, and the
New Junior Subordinated Debentures will be issued, as a separate
series under a Junior Subordinated Indenture (the "Indenture")
between the Company and The Bank of New York, as trustee (the
"Indenture Trustee"). The Indenture has been qualified under the
Trust Indenture Act. This summary of certain terms and provisions
of the Junior Subordinated Debentures and the Indenture does not
purport to be complete and is subject to, and is qualified in its
entirety by reference to, the Indenture.
General
Concurrently with the issuance of the Old Capital
Securities, the Trust invested the proceeds thereof and the
consideration paid by the Company for the Common Securities in
the Old Junior Subordinated Debentures issued by the Company. The
Junior Subordinated Debentures are in a principal amount equal to
the aggregate liquidation amount of the Capital Securities plus
the Company's concurrent investment in the Common Securities. The
Junior Subordinated Debentures bear interest at the annual rate
of 9.10% of the principal amount thereof, payable semi-annually
in arrears on the 1st day of June and December of each year
(each, an "Interest Payment Date"), commencing December 1, 1997,
to the person in whose name each Junior Subordinated Debenture is
registered, subject to certain exceptions, at the close of
business on the 15th day of the month preceding the relevant
Interest Payment Date. It is anticipated that, until the
liquidation, if any, of the Trust, each Junior Subordinated
Debenture will be held in the name of the Property Trustee in
trust for the benefit of the holders of the Capital Securities
and the Common Securities. The amount of interest payable for any
period will be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is
payable on the Junior Subordinated Debentures is not a Business
Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay), with the same force and effect as if made on the date
such payment was originally payable. Accrued interest that is not
paid on the applicable Interest Payment Date will bear additional
interest on the amount thereof (to the extent permitted by law)
at the rate per annum of 9.10% thereof, compounded semi-annually.
The term "interest" as used herein shall include semi-annual
interest payments and interest on semi-annual interest payments
not paid on the applicable Interest Payment Date, as applicable.
The Junior Subordinated Debentures will mature on June 1,
2027 (the "Stated Maturity").
The Junior Subordinated Debentures are unsecured and rank
junior and subordinate in right of payment to all Indebtedness
(as defined below) of the Company. The Indenture does not limit
the incurrence or issuance of other secured or unsecured debt of
the Company, whether under the Indenture or any existing or other
indenture that the Company may enter into in the future or
otherwise. See "-- Subordination."
The general provisions of the Indenture do not afford
holders of the Junior Subordinated Debentures protection in the
event of a highly leveraged or other transaction involving the
Company that may adversely affect holders of the Junior
Subordinated Debentures.
44
<PAGE>
Option to Extend Interest Payment Period
So long as no Indenture Event of Default has occurred and
is continuing, the Company has the right under the Indenture to
defer the payment of interest at any time or from time to time
for a period not exceeding 10 consecutive semi-annual periods
with respect to each Extension Period, provided that no Extension
Period may extend beyond the Stated Maturity of the Junior
Subordinated Debentures. At the end of such Extension Period, the
Company must pay all interest then accrued and unpaid (together
with interest thereon at the annual rate of 9.10%, compounded
semi-annually, to the extent permitted by applicable law). During
an Extension Period, stated interest will continue to accrue and
holders of Junior Subordinated Debentures (or holders of Capital
Securities while the Capital Securities are outstanding) will be
required to include such stated interest in income (as OID) for
United States federal income tax purposes. See "Certain United
States Federal Income Tax Consequences -- Interest Income and
Original Issue Discount."
During any such Extension Period, the Company may not, and
may not permit any subsidiary of the Company to, (i) declare or
pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of
the Company's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu
with or junior in interest to the Junior Subordinated Debentures
or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in
interest to the Junior Subordinated Debentures (other than (a)
repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or
consultants, or in connection with a dividend reinvestment or
stockholder stock purchase plan, (b) as a result of an exchange
or conversion of any class or series of the Company's capital
stock (or any capital stock of a subsidiary of the Company) for
any class or series of the Company's capital stock or of any
class or series of the Company's indebtedness for any class or
series of the Company's capital stock, (c) the purchase of
fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholder's
rights plans, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the
form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on
which the dividend is being paid (or ranks pari passu with or
junior to such stock). Prior to the termination of any such
Extension Period, the Company may further extend the Extension
Period, provided that no Extension Period may exceed 10
consecutive semi-annual periods or extend beyond the Stated
Maturity of the Junior Subordinated Debentures. Upon the
termination of any such Extension Period and the payment of all
amounts then due on any Interest Payment Date, the Company may
elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company must
give the Property Trustee, the Administrators and the Indenture
Trustee notice of its election of such Extension Period not less
than one Business Day prior to such record date. The Property
Trustee shall give notice of the Company's election to begin a
new Extension Period to the holders of the Capital Securities.
Redemption
The Junior Subordinated Debentures are not redeemable prior
to June 1, 2007 unless a Special Event has occurred. The Junior
Subordinated Debentures are redeemable prior to maturity at the
option of the Company, subject to the receipt of any necessary
prior approval of the Federal Reserve, on or after
45
<PAGE>
June 1, 2007, in whole or in part at any time at the
redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest, if any, to the
date of redemption, if redeemed during the twelve-month period
beginning on June 1 of the years indicated below:
Year Percentage
2007 104.4790%
2008 104.0311%
2009 103.5832%
2010 103.1353%
2011 102.6874%
2012 102.2395%
2013 101.7916%
2014 101.3437%
2015 100.8958%
2016 100.4479%
On or after June 1, 2017, the redemption price will be
100%, plus accrued and unpaid interest, if any, to the date of
redemption.
The Junior Subordinated Debentures are also redeemable at
any time in whole (but not in part), within 90 days of the
occurrence of a Special Event, at a redemption price (the
"Special Event Prepayment Price") equal to the greater of (i)
100% of the principal amount of such Junior Subordinated
Debentures or (ii) as determined by a Quotation Agent (as defined
below), the sum of the present values of the principal amount and
premium payable with respect to an optional redemption of such
Junior Subordinated Debentures on June 1, 2007, together with
scheduled payments of interest from the prepayment date to June
1, 2007 (the "Remaining Life") discounted to the prepayment date
on a semi-annual basis (assuming a 360-day year consisting of
30-day months) at the Adjusted Treasury Rate, plus, in each case,
accrued interest thereon to the date of prepayment.
"Adjusted Treasury Rate" means, with respect to any
prepayment date, the Treasury Rate plus (i) 1.50% if such
prepayment date occurs on or before June 1, 1998 or (ii) 0.50% if
such prepayment date occurs after June 1, 1998.
"Treasury Rate" means (i) the yield, under the heading
which represents the average for the immediately prior week,
appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the
Remaining Life (if no maturity is within three months before or
after the Remaining Life, yields for the two published maturities
most closely corresponding to the Remaining Life shall be
determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding
to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
prepayment date. The Treasury Rate shall be calculated on the
third business day preceding the prepayment date.
46
<PAGE>
"Comparable Treasury Issue" means with respect to any
prepayment date the United States Treasury security selected by
the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to
the Remaining Life. If no United States treasury security has a
maturity which is within a period from three months before to
three months after June 1, 2007, the two most closely
corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding
to the nearest month using such securities.
"Quotation Agent" means (i) Lehman Brothers Inc. and its
successors; provided, however, that if the foregoing shall cease
to be a primary U.S. Government securities dealer in New York
City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the Indenture Trustee after
consultation with the Company.
"Comparable Treasury Price" means (A) the average of five
Reference Treasury Dealer Quotations for such prepayment date,
after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Indenture Trustee obtains fewer
than three such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any prepayment date, the
average, as determined by the Company, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to the
Indenture Trustee by such Reference Treasury Dealer at 5:00 p.m.
New York City time, on the third business day preceding such
prepayment date.
If the Junior Subordinated Debentures are redeemed, the
Trust must redeem Trust Securities having an aggregate
liquidation amount equal to the aggregate principal amount of
Junior Subordinated Debentures so redeemed. See "Description of
Capital Securities -- Mandatory Redemption."
Notice of any redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
holder of Junior Subordinated Debentures to be redeemed at its
registered address. Unless the Company defaults in payment of the
redemption price, on and after the redemption date interest
ceases to accrue on such Junior Subordinated Debentures or
portions thereof called for redemption.
Certain Covenants of the Company
The Company covenants in the Indenture that if and so long
as the Trust is the holder of all Junior Subordinated Debentures,
the Company, as borrower, will pay to the Trust all fees and
expenses related to the Trust and the offering of the Capital
Securities and will pay, directly or indirectly, all ongoing
costs, expenses and liabilities of the Trust (including any
taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed by the United
States or any domestic taxing authority upon the Trust but
excluding obligations under the Capital Securities).
The Company also covenants that it will not, and will not
permit any subsidiary of the Company to, (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or
make a liquidation payment with respect to, any of the Company's
capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in
interest to the Junior Subordinated Debentures or make
47
<PAGE>
any guarantee payments with respect to any guarantee by the Company
of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the
Junior Subordinated Debentures (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of
the Company in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants, or in
connection with a dividend reinvestment or stockholder stock
purchase plan, (b) as a result of an exchange or conversion of
any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the
Company's capital stock, (c) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a
dividend in connection with any stockholder's rights plans, or
the issuance of rights, stock or other property under any
stockholder's rights plan, or the redemption or repurchase of
rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock
or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is
being paid (or ranks pari passu with or junior to such stock) if
at such time (x) there shall have occurred any event of which the
Company has actual knowledge that (I) with the giving of notice
or the lapse of time, or both, would constitute an Indenture
Event of Default with respect to Junior Subordinated Debentures
and (II) in respect of which the Company shall not have
taken reasonable steps to cure, (y) the Company shall be in
default with respect to its payment of any obligations under the
Guarantee or (z) the Company shall have given notice of its
election of an Extension Period as provided in the Indenture and
shall not have rescinded such notice, or such Extension Period,
or any extension thereof, shall be continuing. The Indenture does
not contain provisions that afford holders of the Junior
Subordinated Debentures protection in the event of a highly
leveraged transaction or other similar transaction involving the
Company that may adversely affect such holders.
Subordination
In the Indenture, the Company has covenanted and agreed
that any Junior Subordinated Debentures issued thereunder will be
subordinated and junior in right of payment to all Indebtedness
to the extent provided in the Indenture. Upon any payment or
distribution of assets of the Company upon any liquidation,
dissolution, winding-up, reorganization, assignment for the
benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of the
Company, the holders of Indebtedness will first be entitled to
receive payment in full of principal of and premium, if any, and
interest, if any, on such Indebtedness before the holders of
Junior Subordinated Debentures or the Property Trustee on behalf
of the holders of Capital Securities will be entitled to receive
or retain any payment in respect of the principal of and premium,
if any, or interest, if any, on the Junior Subordinated
Debentures; provided, however, that holders of Indebtedness shall
not be entitled to receive payment of any such amounts to the
extent that such holders would be required by the subordination
provisions of such Indebtedness to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising
in the ordinary course of the Company's business.
In the event of the acceleration of the maturity of any
Junior Subordinated Debentures, the holders of all Indebtedness
outstanding at the time of such acceleration will first be
entitled to receive payment in full of all amounts then due
thereon (including any amounts due upon acceleration) before the
holders of Junior Subordinated Debentures will be entitled to
receive or retain any payment in respect of the principal of and
premium, if any, or interest, if any, on the Junior Subordinated
Debentures; provided, however, that holders of Indebtedness shall
not be entitled to receive payment of any such amounts to the
48
<PAGE>
extent that such holders would be required by the subordination
provisions of such Indebtedness to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising
in the ordinary course of the Company's business.
No payments on account of principal (or premium, if any) or
interest, if any, in respect of the Junior Subordinated
Debentures may be made if there shall have occurred and be
continuing a default in any payment with respect to Indebtedness,
or an event of default with respect to any Indebtedness resulting
in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default.
"Indebtedness" means with respect to any person, whether
recourse is to all or a portion of the assets of such person and
whether or not contingent, (i) every obligation of such person
for money borrowed; (ii) every obligation of such person
evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such person with respect to letters
of credit, bankers' acceptances or similar facilities issued for
the account of such person; (iv) every obligation of such person
issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business); (v)
every capital lease obligation of such person; (vi) every
obligation of such person for claims (as defined in Section
101(4) of the United States Bankruptcy Code of 1978, as amended)
in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar
arrangements; and (vii) every obligation of the type referred to
in clauses (i) through (vi) of another person and all dividends
of another person the payment of which, in either case, such
person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise; provided that "Indebtedness"
shall not include (i) any obligations which, by their terms, are
expressly stated to rank pari passu in right of payment with, or
to not be superior in right of payment to, the Junior
Subordinated Debentures, (ii) any Indebtedness of the Company
which when incurred and without respect to any election under
Section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (iii) any
Indebtedness of the Company to any of its subsidiaries, (iv)
Indebtedness to any employee of the Company, or (v) any
indebtedness of the Company in respect of debt securities issued
to any trust, or a trustee of such trust, partnership or other
entity affiliated with the Company that is a financing entity of
the Company in connection with the issuance by such financing
entity of securities that are similar to the Capital Securities.
The Indenture places no limitation on the amount of
additional Indebtedness that may be incurred by the Company or
any indebtedness or other liabilities that may be incurred by the
Company's subsidiaries. As of June 30, 1997, Indebtedness of the
Company aggregated approximately $236 million, and the Company's
subsidiaries had indebtedness and other liabilities of
approximately $507 million to which the Junior Subordinated
Debentures would be effectively subordinated.
Indenture Events of Default
The Indenture provides that any one or more of the
following described events with respect to the Junior
Subordinated Debentures that has occurred and is continuing
constitutes an "Indenture Event of Default" with respect to the
Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on the Junior
Subordinated Debentures when due (subject to the deferral of any
due date in the case of an Extension Period); or
49
<PAGE>
(ii) failure to pay any principal on the Junior Subordinated
Debentures when due whether at maturity, upon redemption by declaration or
otherwise; or
(iii) failure to observe or perform in any material respect
any other covenant contained in the Indenture for 90 days after
written notice to the Company from the Indenture Trustee or the
holders of at least 25% in aggregate outstanding principal amount
of Junior Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal
amount of Junior Subordinated Debentures have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee. The Indenture Trustee
or the holders of not less than 25% in aggregate outstanding
principal amount of Junior Subordinated Debentures may declare
the principal due and payable immediately upon an Indenture Event
of Default, and, should the Indenture Trustee or such holders of
such Junior Subordinated Debentures fail to make such
declaration, the holders of at least 25% in aggregate liquidation
amount of the Capital Securities shall have such right. The
holders of a majority in aggregate outstanding principal amount
of Junior Subordinated Debentures may annul such declaration and
waive the default if the default (other than the non-payment of
the principal of Junior Subordinated Debentures which has become
due solely by such acceleration) has been cured and a sum
sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited
with the Indenture Trustee, and should the holders of such Junior
Subordinated Debentures fail to annul such declaration and waive
such default, the holders of a majority in aggregate liquidation
amount of the Capital Securities shall have such right.
The holders of a majority in aggregate outstanding
principal amount of the Junior Subordinated Debentures affected
thereby may, on behalf of the holders of all the Junior
Subordinated Debentures, waive any past default, except a default
in the payment of principal or interest (unless such default has
been cured and a sum sufficient to pay all matured installments
of interest and principal due otherwise than by acceleration
has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Junior Subordinated
Debenture, and should the holders of such Junior Subordinated
Debentures fail to waive such default, the holders of a majority
in aggregate liquidation amount of the Capital Securities shall
have such right. The Company is required to file annually with
the Indenture Trustee a certificate as to whether or not the
Company is in compliance with all the conditions and covenants
applicable to it under the Indenture.
In case an Indenture Event of Default shall occur and be
continuing, the Property Trustee will have the right to declare
the principal of and the interest on such Junior Subordinated
Debentures and any other amounts payable under the Indenture to
be forthwith due and payable and to enforce its other rights as a
creditor with respect to such Junior Subordinated Debentures.
Enforcement of Certain Rights by Holders of Capital Securities
If an Indenture Event of Default has occurred and is
continuing and such event is attributable to the failure of the
Company to pay interest or principal on the Junior Subordinated
Debentures on the date such interest or principal is otherwise
payable, a holder of Capital Securities may institute a Direct
Action for payment. The Company may not amend the Indenture to
remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Capital
Securities. Notwithstanding any payment made to such holder of
Capital Securities by the Company in connection with a Direct
Action, the Company shall remain obligated to pay the principal
of or interest on the Junior
50
<PAGE>
Subordinated Debentures held by the Trust or the Property
Trustee and the Company shall be subrogated to the rights of the
holder of such Capital Securities with respect to payments on the
Capital Securities to the extent of any payments made by the
Company to such holder in any Direct Action. The holders of
Capital Securities will not be able to exercise directly any
other remedy available to the holders of the Junior Subordinated
Debentures.
Consolidation, Merger, Sale of Assets and Other Transactions
The Indenture provides that the Company shall not
consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an
entirety to any Person, unless (i) in case the Company
consolidates with or merges into another Person or conveys,
transfers or leases its properties and assets substantially as an
entirety to any Person, the successor Person is organized under
the laws of the United States or any state or the District of
Columbia, and such successor Person expressly assumes the
Company's obligations on the Junior Subordinated Debentures
issued under the Indenture; (ii) immediately after giving effect
thereto, no Indenture Event of Default, and no event which, after
notice or lapse of time or both, would become an Indenture Event
of Default, shall have happened and be continuing; (iii) if at
the time any Capital Securities are outstanding, such
transaction is permitted under the Declaration and Guarantee and
does not give rise to any breach or violation of the Declaration
or Guarantee; (iv) any such lease shall provide that it will
remain in effect so long as any Junior Subordinated Debentures
are outstanding; and (v) certain other conditions as prescribed
in the Indenture are met.
Modification of Indenture
From time to time the Company and the Indenture Trustee
may, without the consent of the holders of the Junior
Subordinated Debentures, amend, waive or supplement the Indenture
for specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies (provided that any such
action does not materially adversely affect the interest of the
holders of Junior Subordinated Debentures) and qualifying, or
maintaining the qualification of, the Indenture under the Trust
Indenture Act and to add to, delete from or revise the terms of
the Junior Subordinated Debentures to provide for transfer
procedures and restrictions substantially similar to those
applicable to the Capital Securities (for purposes of assuring
that no registration of the Junior Subordinated Debentures is
required under the Securities Act). The Indenture contains
provisions permitting the Company and the Indenture Trustee, with
the consent of the holders of not less than a majority in
principal amount of outstanding Junior Subordinated Debentures
affected, to modify the Indenture in a manner affecting the
rights of the holders of such Junior Subordinated Debentures;
provided that no such modification may, without the consent of
the holder of each outstanding Junior Subordinated Debenture so
affected, (i) change the stated maturity of Junior Subordinated
Debentures, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon (except
such extension as is contemplated hereby) or (ii) reduce the
percentage of principal amount of Junior Subordinated Debentures
the holders of which are required to consent to any such
modification of the Indenture, provided that, so long as any
Capital Securities remain outstanding, no such modification may
be made that adversely affects the holders of such Capital
Securities in any material respect, and no termination of the
Indenture may occur, and no waiver of any Indenture Event of
Default or compliance with any covenant under the Indenture may
be effective, without the prior consent of the holders of at
least a majority of the aggregate liquidation amount of the
outstanding Capital Securities unless and until the principal of
the Junior Subordinated Debentures and all accrued and unpaid
interest thereon have been paid in full and certain other
conditions are satisfied.
51
<PAGE>
Defeasance and Discharge
The Indenture provides that the Company, at the Company's
option: (a) will be discharged from any and all obligations in
respect of the Junior Subordinated Debentures (except for certain
obligations to register the transfer or exchange of Junior
Subordinated Debentures, replace stolen, lost or mutilated Junior
Subordinated Debentures, maintain paying agencies and hold moneys
for payment in trust) or (b) need not comply with certain
restrictive covenants of the Indenture (including that described
in the second paragraph under "-- Certain Covenants of the
Company"), in each case if the Company deposits, in trust with
the Indenture Trustee, money or U.S. Government Obligations which
through the payment of interest thereon and principal thereof in
accordance with their terms will provide money, in an amount
sufficient to pay all the principal of, and interest and premium,
if any, on the Junior Subordinated Debentures on the dates such
payments are due in accordance with the terms of such Junior
Subordinated Debentures. To exercise any such option, the Company
is required to deliver to the Indenture Trustee an opinion of
counsel to the effect that the deposit and related defeasance
would not cause the holders of the Junior Subordinated Debentures
to recognize income, gain or loss for United States federal
income tax purposes and, in the case of a discharge pursuant to
clause (a), such opinion shall be accompanied by a private letter
ruling to that effect received by the Company from the United
States Internal Revenue Service or revenue ruling pertaining to a
comparable form of transaction to such effect published by the
United States Internal Revenue Service.
Distributions of Junior Subordinated Debentures; Book-Entry Issuance
Under certain circumstances involving the termination of
the Trust, Junior Subordinated Debentures may be distributed to
the holders of the Capital Securities in liquidation of the Trust
after satisfaction of liabilities to creditors of the Trust as
provided by applicable law. If distributed to holders of Capital
Securities in liquidation, the Junior Subordinated Debentures
will initially be issued in the form of global
securities and certificated securities. DTC, or
any successor depositary, will act as depositary for such global
securities. It is anticipated that the depositary arrangements
for such global securities would be substantially identical to
those in effect for the Capital Securities. For a description of
global securities and certificated securities, see "Book-Entry
Issuance."
There can be no assurance as to the market price of any
Junior Subordinated Debentures that may be distributed to the
holders of Capital Securities.
Payment and Paying Agents
The Company initially will act as Paying Agent with respect
to the Junior Subordinated Debentures except that, if the Junior
Subordinated Debentures are distributed to the holders of the
Capital Securities in liquidation of such holders' interests in
the Trust, the Indenture Trustee will act as the Paying Agent.
The Company at any time may designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change
in the office through which any Paying Agent acts, except that
the Company will be required to maintain a Paying Agent at the
place of payment.
Any moneys deposited with the Indenture Trustee or any
Paying Agent, or then held by the Company in trust, for the
payment of the principal of and premium, if any, or interest on
any Junior Subordinated Debentures and remaining unclaimed for
two years after such principal and premium, if any, or interest
has become due and payable shall, at the request of the Company,
be repaid to the Company, and the holder of such Junior
Subordinated Debentures shall thereafter look, as a general
unsecured creditor, only to the Company for payment thereof.
52
<PAGE>
Governing Law
The Indenture and the Junior Subordinated Debentures are
governed by and will be construed in accordance with the laws of
the State of New York.
Information Concerning the Indenture Trustee
The Indenture Trustee is, and is subject to all the duties
and responsibilities specified with respect to, an indenture
trustee under the Trust Indenture Act. Subject to such
provisions, the Indenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the
request of any holder of Junior Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs,
expenses and liabilities which might be incurred thereby. The
Indenture Trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of its duties if the Indenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably
assured to it.
DESCRIPTION OF GUARANTEE
The Old Guarantee was executed and delivered by the Company
concurrently with the issuance by the Trust of the Trust
Securities for the benefit of the holders from time to time of
such Trust Securities. The Bank of New York acts as indenture
trustee ("Guarantee Trustee") under the Guarantee. As soon as
practicable after the date hereof, the Company will exchange the
Old Guarantee for the New Guarantee with respect to the Capital
Securities. The New Guarantee has been qualified under the Trust
Indenture Act. This summary of certain provisions of the
Guarantee does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions
of the Guarantee, including the definitions therein of certain
terms. The Guarantee Trustee will hold the Guarantee for the
benefit of the holders of the Capital Securities.
General
The Company has irrevocably and unconditionally agreed to
pay in full on a subordinated basis, to the extent set forth
herein, the Guarantee Payments (as defined below) to the holders
of the Capital Securities, as and when due, regardless of any
defense, right of set-off or counterclaim that the Trust may have
or assert other than the defense of payment. The following
payments with respect to the Capital Securities, to the extent
not paid by or on behalf of the Trust (the "Guarantee Payments"),
are subject to the Guarantee: (i) any accumulated and unpaid
Distributions required to be paid on the Capital Securities, to
the extent that the Trust has sufficient funds available therefor
at the time, (ii) the redemption price with respect to any
Capital Securities called for redemption, to the extent that the
Trust has sufficient funds available therefor at such time, or
(iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of the Trust (unless the Junior Subordinated
Debentures are distributed to holders of the Capital Securities),
the lesser of (a) the aggregate liquidation amount of the Capital
Securities and all accrued and unpaid Distributions thereon to
the date of payment and (b) the amount of assets of the Trust
remaining available for distribution to holders of Capital
Securities. The Company's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the
Company to the holders of the applicable Capital Securities or by
causing the Trust to pay such amounts to such holders.
The Guarantee is an irrevocable guarantee on a subordinated
basis of the Trust's obligations under the Capital Securities,
but it applies only to the extent that the Trust has sufficient
funds available to make such payments.
53
<PAGE>
If the Company does not make interest payments on the
Junior Subordinated Debentures held by the Trust, the Trust will
not be able to pay Distributions on the Capital Securities and
will not have funds legally available therefor. The Guarantee
ranks subordinate and junior in right of payment to all general
liabilities of the Company. See "-- Status of the Guarantee." The
Guarantee does not limit the incurrence or issuance of other
secured or unsecured debt of the Company, whether under the
Indenture or any existing or other indenture that the Company may
enter into in the future or otherwise.
The Company has, through the Guarantee, the Junior
Subordinated Debentures and the Indenture, taken together, fully
and unconditionally guaranteed all of the Trust's obligations
under the Capital Securities. No single document standing alone
or operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined
operation of these documents that has the effect of providing a
full and unconditional guarantee of the Trust's obligations under
the Capital Securities. See "Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the Guarantee
- -- General."
Status of the Guarantee
The Guarantee constitutes an unsecured obligation of the
Company and ranks subordinate and junior in right of payment to
all Indebtedness of the Company. The Guarantee does not place a
limitation on the amount of additional Indebtedness that may be
incurred by the Company.
The Guarantee constitutes a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal
proceeding directly against the Company to enforce its rights
under the Guarantee without first instituting a legal proceeding
against any other person or entity). The Guarantee will be held
for the benefit of the holders of the Capital Securities. The
Guarantee will not be discharged except by payment of the
Guarantee Payments in full to the extent not paid by the Trust or
upon distribution of the Junior Subordinated Debentures to the
holders of the Capital Securities in exchange for all of the
Capital Securities.
Amendments and Assignment
Except with respect to any changes that do not materially
adversely affect the rights of holders of the Capital Securities
(in which case no vote will be required), the Guarantee may not
be amended without the prior approval of the holders of not less
than a majority of the aggregate liquidation amount of the
outstanding Capital Securities. The manner of obtaining any such
approval will be as set forth under "Description of Capital
Securities -- Voting Rights; Amendment of the Declaration." All
guarantees and agreements contained in the Guarantee shall bind
the successors, assigns, receivers, trustees and representatives
of the Company and shall inure to the benefit of the registered
holders of the Capital Securities then outstanding.
Events of Default
An event of default under the Guarantee will occur upon the
failure of the Company to perform any of its payment or other
obligations thereunder. The holders of a majority in aggregate
liquidation amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of
the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
54
<PAGE>
Any holder of the Capital Securities may institute a legal
proceeding directly against the Company to enforce its rights
under the Guarantee without first instituting a legal proceeding
against the Trust, the Guarantee Trustee or any other person or
entity.
The Company, as guarantor, is required to file annually
with the Guarantee Trustee a certificate as to whether or not the
Company is in compliance with all the conditions and covenants
applicable to it under the Guarantee.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Company in performance of the
Guarantee, undertakes to perform only such duties as are
specifically set forth in each Guarantee and, after default with
respect to the Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the
Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by the Guarantee at the request of any holder
of any Capital Security unless it is offered reasonable indemnity
against the costs, expenses and liabilities that might be
incurred thereby.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and
effect upon full payment of the redemption price of all of the
Capital Securities, upon full payment of the amounts payable upon
liquidation of the Trust or upon distribution of Junior
Subordinated Debentures to the holders of the Capital Securities
in exchange for all of the Capital Securities. The Guarantee will
continue to be effective or will be reinstated, as the case may
be, if at any time any holder of the Capital Securities must
restore payment of any sums paid under the Capital Securities or
the Guarantee.
Governing Law
The Guarantee is governed by and will be construed in
accordance with the laws of the State of New York.
RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
Payments of Distributions and other amounts due on the
Capital Securities (to the extent the Trust has funds available
for the payment of such Distributions) are irrevocably guaranteed
by the Company as and to the extent set forth under "Description
of Guarantee." If and to the extent that the Company does not
make payments under the Junior Subordinated Debentures, the Trust
will not pay Distributions or other amounts due on the Capital
Securities. The Guarantee does not cover payment of Distributions
when the Trust does not have sufficient funds to pay such
Distributions. In such event, a holder of Capital Securities may
institute a legal proceeding directly against the Company under
the Indenture to enforce payment of such Distributions to such
holder after the respective due dates. Taken together, the
Company's obligations under the Junior Subordinated Debentures,
the Indenture and the Guarantee provide, in the aggregate, a full
and unconditional guarantee of payment of distributions and other
amounts due on the Capital Securities. No single document
standing alone or operating in conjunction with fewer than all of
the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of
providing a full and unconditional guarantee of the Trust's
obligations under the Capital Securities. The obligations of the
Company under
55
<PAGE>
the Guarantee and the Junior Subordinated Debentures are
subordinate and junior in right of payment to all Indebtedness of
the Company to the extent provided in the Indenture.
Sufficiency of Payments
As long as payments of interest and other payments are made
when due on the Junior Subordinated Debentures, such payments
will be sufficient to cover Distributions and other payments due
on the Capital Securities, primarily because (i) the aggregate
principal amount of the Junior Subordinated Debentures will be
equal to the sum of the aggregate stated liquidation amount of
the Capital Securities and the Common Securities; (ii) the
interest rate and interest and other payment dates on the Junior
Subordinated Debentures will match the Distribution rate and
Distribution and other payment dates for the related Capital
Securities; (iii) the Company will pay for all and any costs,
expenses and liabilities of the Trust except the Trust's
obligations under the Capital Securities; and (iv) the
Declaration further provides that the Trust will not engage in
any activity that is not consistent with the limited purposes of
the Trust.
Notwithstanding anything to the contrary in the Indenture,
the Company has the right to set-off any payment it is otherwise
required to make thereunder with and to the extent the Company
has theretofore made, or is concurrently on the date of such
payment making, a related payment under the Guarantee.
Enforcement Rights of Holders of Capital Securities
A holder of Capital Securities may institute a legal
proceeding directly against the Company to enforce its rights
under the Guarantee without first instituting a legal proceeding
against the Guarantee Trustee, the Trust or any other person or
entity.
A default or event of default under any Indebtedness of the
Company will not constitute a default or Indenture Event of
Default. In addition, in the event of payment defaults under, or
acceleration of, Indebtedness of the Company, the subordination
provisions of the Indenture provide that no payments may be made
in respect of the Junior Subordinated Debentures until such
Indebtedness has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required
payments on the Junior Subordinated Debentures would constitute
an Indenture Event of Default under the Indenture.
Limited Purpose of Trust
The Capital Securities evidence a beneficial interest in
the assets of the Trust, and the Trust exists for the sole
purpose of issuing the Capital Securities and the Common
Securities and investing the proceeds thereof in Junior
Subordinated Debentures. A principal difference between the
rights of a holder of Capital Securities and a holder of Junior
Subordinated Debentures is that a holder of Junior Subordinated
Debentures is entitled to receive from the Company the principal
amount of and interest accrued on Junior Subordinated Debentures
held, while a holder of Capital Securities is entitled to receive
Distributions from the Trust (or from the Company under the
Guarantee) if and to the extent the Trust has funds available for
the payment of such Distributions.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution, winding-up
or liquidation of the Trust involving the liquidation of the
Junior Subordinated Debentures, after satisfaction of liability
to creditors of the Trust as required by applicable law, the
holders of the Capital Securities will be entitled to receive,
out of
56
<PAGE>
assets held by the Trust, the liquidation distribution in
cash. See "Description of Capital Securities -- Liquidation
Distribution Upon Dissolution." Upon any voluntary or involuntary
liquidation or bankruptcy of the Company, the Property Trustee,
as holder of the Junior Subordinated Debentures, would be a
subordinated creditor of the Company, subordinated in right of
payment to all Indebtedness to the extent provided in the
Indenture, but entitled to receive payment in full of principal
and interest before any stockholders of the Company receive
payments or distributions. Since the Company is the guarantor
under the Guarantee and has agreed to pay for all costs, expenses
and liabilities of the Trust (other than the Trust's obligations
to the holders of the Capital Securities), the positions of a
holder of Capital Securities and a holder of the Junior
Subordinated Debentures relative to other creditors and to
stockholders of the Company in the event of liquidation or
bankruptcy of the Company would be substantially the same.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Cleary, Gottlieb, Steen & Hamilton,
special United States federal income tax counsel to the Company
and the Trust ("Tax Counsel"), the following summary accurately
describes the material United States federal income tax
consequences that may be relevant to the purchase, ownership and
disposition of the Capital Securities. Unless otherwise stated,
this summary deals only with Capital Securities held as capital
assets by United States Holders (defined below) who purchase the
Capital Securities upon original issuance at their original
offering price. As used herein, a "United States Holder" means a
person that is a citizen or resident of the United States or a
U.S. domestic corporation or that otherwise will be subject to
United States federal income taxation on a net income basis in
respect of the Capital Securities. As used herein, the term
"Non-United States Holder" means any person that is not a United
States Holder. The tax treatment of a holder may vary depending
on his, her or its particular situation. This summary does not
address all the tax consequences that may be relevant to a
particular holder or to holders who may be subject to special tax
treatment, such as banks, real estate investment trusts,
regulated investment companies, insurance companies, dealers in
securities or currencies, or tax-exempt investors. In addition,
this summary does not include any description of any alternative
minimum tax consequences or the tax laws of any state, local or
foreign government that may be applicable to a holder of Capital
Securities. This summary is based on the Internal Revenue Code of
1986, as amended (the "Code"), the Treasury regulations
promulgated thereunder and administrative and judicial
interpretations thereof, as of the date hereof, all of which are
subject to change, possibly on a retroactive basis. The
authorities on which this summary is based are subject to various
interpretations and the opinions of Tax Counsel are not binding
on the Internal Revenue Service ("IRS") or the courts, either of
which could take a contrary position. Moreover, no rulings have
been or will be sought from the IRS with respect to the
transactions described herein. Accordingly, there can be no
assurance that the IRS will not challenge the opinions expressed
herein or that a court would not sustain such a challenge.
Nevertheless, Tax Counsel has advised that it is of the view
that, if challenged, the opinions expressed herein would be
sustained by a court with jurisdiction in a properly presented
case.
HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT
TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE CAPITAL SECURITIES, INCLUDING THE TAX
CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND OTHER TAX LAWS AND
THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR OTHER
TAX LAWS. FOR A DISCUSSION OF THE POSSIBLE REDEMPTION OF THE
CAPITAL SECURITIES UPON THE OCCURRENCE OF CERTAIN TAX EVENTS SEE
"DESCRIPTION OF CAPITAL SECURITIES -- REDEMPTION -- SPECIAL EVENT
REDEMPTION OR DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES."
Exchange of Capital Securities
57
<PAGE>
The exchange of the Old Capital Securities for the New
Capital Securities pursuant to the Exchange Offer will not
constitute a taxable event to United States Holders.
Consequently, (i) no gain or loss should be realized by a United
States Holder upon receipt of a New Capital Security; (ii) the
holding period of the New Capital Security should include the
holding period of the Old Capital Security exchanged therefor;
and (iii) the adjusted tax basis of the New Capital Security
should be the same as the adjusted tax basis of the Old Capital
Security exchanged therefor immediately before the exchange.
Classification of the Trust
In connection with the issuance of the Old Capital
Securities, Tax Counsel rendered its opinion that under then
current law and assuming full compliance with the terms of the
Declaration, the Trust will be classified as a grantor trust and
not as an association taxable as a corporation for United States
federal income tax purposes. Accordingly, for United States
federal income tax purposes, each beneficial owner (a "holder")
of Capital Securities will be treated as owning an undivided
beneficial interest in the Junior Subordinated Debentures and,
thus, will be required to include in its gross income its pro
rata share of the interest income or original issue discount that
is paid or accrued on the Junior Subordinated Debentures.
Classification of the Junior Subordinated Debentures
The Company, the Trust and the holders of the Old Capital
Securities (by the acceptance of a beneficial interest in a
Capital Security) have agreed, and the holders of the New Capital
Securities will agree, to treat the Junior Subordinated
Debentures as indebtedness for all United States tax purposes. In
connection with the issuance of the Old Junior Subordinated
Debentures, Tax Counsel has rendered its opinion that, under then
current law, and based on certain representations, facts and
assumptions set forth in such opinion, the Junior Subordinated
Debentures will be classified as indebtedness for United States
federal income tax purposes.
Interest Income and Original Issue Discount
Under the applicable Treasury regulations, the Junior
Subordinated Debentures will not be treated as issued with
"original issue discount" ("OID") within the meaning of section
1273(a) of the Code. Accordingly, except as set forth below,
stated interest on the Junior Subordinated Debentures generally
will be taxable to a holder as ordinary income at the time it is
paid or accrued in accordance with such holder's regular method
of tax accounting.
If, however, the Company exercises its right to defer
payments of stated interest on the Junior Subordinated
Debentures, the Junior Subordinated Debentures will become OID
instruments at such time and all holders of the Junior
Subordinated Debentures and, consequently, holders of the Capital
Securities will be required to accrue their pro rata share of OID
(which will include both the stated interest and the de minimis
OID, if any, on the Junior Subordinated Debentures) on a daily
economic accrual basis during the Extension Period even though
the Company will not pay such stated interest until the end of
the Extension Period, and even though some holders may use the
cash method of tax accounting. Moreover, thereafter the Junior
Subordinated Debentures will be taxed as OID instruments for as
long as they remain outstanding. Thus, even after the end of an
Extension Period, all holders would be required to continue to
include the stated interest (and de minimis OID, if any) on the
Junior Subordinated Debentures in income on a daily economic
accrual basis, regardless of their method of tax accounting and
in advance of receipt of the cash attributable to such income.
Under the OID economic accrual rules, a holder would accrue an
amount of interest income each year that approximates the stated
58
<PAGE>
interest payments called for under the terms of the Junior
Subordinated Debentures, and actual cash payments of stated
interest on the Junior Subordinated Debentures would not be
reported separately as taxable income. Any amount of OID included
in a holder's gross income (whether or not during an Extension
Period) with respect to a Capital Security will increase such
holder's tax basis in such Capital Security, and the amount of
Distributions received by a holder in respect of such accrued OID
will reduce the tax basis of such Capital Security.
The Treasury regulations described above have not yet been
addressed in any rulings or other interpretations by the IRS, and
it is possible that the IRS could take a contrary position. If
the IRS were to assert successfully that the stated interest on
the Junior Subordinated Debentures was OID regardless of whether
the Company exercises its option to defer payments of interest on
such debentures, all holders of Capital Securities would be
required to include such stated interest in income on a daily
economic accrual basis as described above.
Corporate holders of Capital Securities will not be
entitled to a dividends-received deduction with respect to any
income recognized by such holders with respect to the Capital
Securities.
Distribution of Junior Subordinated Debentures or Cash
upon Liquidation of the Trust
As described under the caption "Description of Junior
Subordinated Debentures -- Distribution of Junior Subordinated
Debentures," Junior Subordinated Debentures may be distributed to
holders in exchange for the Capital Securities and in liquidation
of the Trust. Under current law, such a distribution would be
non-taxable, and will result in the holder receiving directly its
pro rata share of the Junior Subordinated Debentures previously
held indirectly through the Trust, with a holding period and
aggregate tax basis equal to the holding period and aggregate tax
basis such holder had in its Capital Securities before such
distribution. If, however, the liquidation of the Trust were to
occur because the Trust is subject to United States federal
income tax with respect to income accrued or received on the
Junior Subordinated Debentures, the distribution of the Junior
Subordinated Debentures to holders would be a taxable event to
the Trust and to each holder and a holder would recognize gain or
loss as if the holder had exchanged its Capital Securities for
the Junior Subordinated Debentures it received upon liquidation
of the Trust. A holder would accrue interest in respect of the
Junior Subordinated Debentures received from the Trust in the
manner described above under "-- Interest Income and Original
Issue Discount."
Under certain circumstances described herein (see
"Description of Capital Securities -- Special Event Redemption or
Distribution of Junior Subordinated Debentures"), the Junior
Subordinated Debentures may be redeemed for cash, with the
proceeds of such redemption distributed to holders in redemption
of their Capital Securities. Under current law, such a redemption
would constitute a taxable disposition of the redeemed Capital
Securities for United States federal income tax purposes, and a
holder would recognize gain or loss as if it sold such redeemed
Capital Securities for cash. See "-- Sales of Capital
Securities."
Sales of Capital Securities
A holder that sells Capital Securities will recognize gain
or loss equal to the difference between the amount realized by
such holder on the sale of the Capital Securities (except to the
extent that such amount realized is characterized as a payment in
respect of accrued but unpaid interest on such holder's allocable
share of the Junior Subordinated Debentures that the holder had
not included in gross income previously) and the holder's
adjusted tax basis in the Capital Securities sold. Such gain or
loss generally will be a capital gain or loss and generally will
be taxable as a long-term capital gain or loss if the Capital
59
<PAGE>
Securities have been held for more than one year. The Taxpayer
Relief Act of 1997 generally reduces the tax rates on capital
gains of individuals in respect of capital assets held for more
than 18 months. Holders are advised to consult with their own tax
advisors as to the consequences in their particular circumstances
of the capital gain provisions of the Taxpayer Relief Act of
1997. Subject to certain limited exceptions, capital losses
cannot be applied to offset ordinary income for United States
federal income tax purposes.
Non-United States Holders
As discussed above, the Capital Securities will be treated
as evidence of an indirect beneficial ownership interest in the
Junior Subordinated Debentures. See "-- Classification of the
Trust." Thus, under present United States federal income tax law,
and subject to the discussion below concerning backup
withholding:
(a) no withholding of United States federal income tax will
be required with respect to the payment by the Company or any
paying agent (a "Paying Agent") of principal or interest (which
for purposes of this discussion includes any OID) in respect of
the Capital Securities (or on the Junior Subordinated Debentures)
to a Non-United States Holder, provided that (i) the beneficial
owner of the Capital Securities ("Beneficial Owner") does not
actually or constructively own 10% or more of the total combined
voting power of all classes of stock of the Company entitled to
vote within the meaning of Section 871(h)(3) of the Code and the
regulations thereunder, (ii) the Beneficial Owner is not a
controlled foreign corporation that is related to the Company
through stock ownership, (iii) the Beneficial Owner is not a bank
whose receipt of interest in respect of the Capital Securities
(or on the Junior Subordinated Debentures) is described in
Section 881(c)(3)(A) of the Code, and (iv) the Beneficial Owner
satisfies the statement requirement (described generally below)
set forth in Section 871(h) and Section 881(c) of the Code and
the regulations thereunder; and
(b) no withholding of United States federal income tax will
be required with respect to any gain realized by a Non-United
States Holder upon the sale or other disposition of the Capital
Securities.
To satisfy the requirement referred to in (a)(iv) above,
the Beneficial Owner, or a financial institution holding the
Capital Securities on behalf of such owner, must provide, in
accordance with specified procedures, to the Trust or any Paying
Agent, a statement to the effect that the Beneficial Owner is not
a United States person. Pursuant to current temporary Treasury
regulations, these requirements will be met if (1) the Beneficial
Owner provides his name and address, and certifies, under
penalties of perjury, that it is not a United States person
(which certification may be made on an IRS Form W-8 (or successor
form)) or (2) a financial institution holding the Capital
Securities on behalf of the Beneficial Owner certifies, under
penalties of perjury, that such statement has been received by it
and furnishes the Company or any Paying Agent with a copy
thereof.
If a Non-United States Holder cannot satisfy the
requirements of the "portfolio interest" exception described in
(a) above, payments of interest (including any OID) made to such
Non-United States Holder will be subject to a 30% United States
federal withholding tax unless the Beneficial Owner provides the
Company or its paying agent, as the case may be, with a properly
executed (1) IRS Form 1001 (or successor form) claiming an
exemption from, or a reduction of, such withholding tax under the
benefit of a United States tax treaty or (2) IRS Form 4224 (or
successor form) stating that interest paid in respect of the
Capital Securities (or on the Junior Subordinated Debentures) is
not subject to such withholding tax because it is effectively
connected with the Beneficial Owner's conduct of a trade or
business in the United States.
60
<PAGE>
If a Non-United States Holder is engaged in a trade or
business in the United States and interest received in respect of
such Non-United States Holder's Capital Securities (or on such
Holder's Junior Subordinated Debentures) is effectively connected
with the conduct of such trade or business, the NonUnited States
Holder, although exempt from the United States federal
withholding tax discussed above, will be subject to United States
federal income tax on such interest income on a net income basis
in the same manner as if it were a United States person. In
addition, if such Non-United States Holder is a foreign
corporation, it may be subject to a branch profits tax equal to
30% of its effectively connected earnings and profits for the
taxable year, subject to adjustments. For this purpose, such
interest income would be included in such foreign corporation's
effectively connected earnings and profits.
Any gain realized upon the sale or other taxable
disposition of the Capital Securities (or Junior Subordinated
Debentures) generally will not be subject to United States
federal income tax unless (i) such gain is effectively connected
with a trade or business carried on within the United States by
the Non-United States Holder, (ii) in the case of a Non-United
States Holder who is an individual, such individual is present in
the United States for 183 days or more in the taxable year of
such sale, exchange or other taxable disposition, and certain
other conditions are met, and (iii) in the case of any gain
representing accrued interest on the Junior Subordinated
Debentures, the requirements described above are not satisfied.
The exchange of the Old Capital Securities for the New
Capital Securities in the Exchange Offer should not constitute a
taxable event to Non-United States Holders.
Information Reporting and Backup Withholding
Income on the Capital Securities (or Junior Subordinated
Debentures) held of record by United States Holders (other than
corporations and other exempt holders) will be reported annually
to such holders and to the IRS. The Administrators currently
intend to deliver such reports to holders of record prior to
January 31 following each calendar year. It is anticipated that
persons who hold Capital Securities (or Junior Subordinated
Debentures) as nominees for beneficial holders will report the
required tax information to beneficial holders on Form 1099.
"Backup withholding" at a rate of 31% will apply to
payments of interest (including OID) to non-exempt United States
Holders unless the holder furnishes its taxpayer identification
number in the manner prescribed in applicable Treasury
regulations, certifies that such number is correct, certifies as
to no loss of exemption from backup withholding and meets certain
other conditions.
No information reporting or backup withholding will be
required with respect to payments made by the Trust or any Paying
Agent to Non-United States Holders if a statement described in
(a)(iv) under "Non-United States Holders" has been received and
the payor does not have actual knowledge that the beneficial
owner is a United States person.
In addition, backup withholding and information reporting
will not apply if payments of the principal, interest, OID or
premium in respect of the Capital Securities (or Junior
Subordinated Debentures) are paid or collected by a foreign
office of a custodian, nominee or other foreign agent on behalf
of the Beneficial Owner, or if a foreign office of a broker (as
defined in applicable Treasury regulations) pays the proceeds of
the sale of the Capital Securities (or Junior Subordinated
Debentures) to the owner thereof. If, however, such nominee,
custodian, agent or broker is, for United States federal income
tax purposes, a United States person, a controlled foreign
corporation or a foreign person that derives 50% or more of its
gross income for certain periods from the conduct of a trade or
business in the United States, such payments will not be subject
to backup withholding but will be subject to information
61
<PAGE>
reporting, unless (1) such custodian, nominee, agent or broker
has documentary evidence in its records that the Beneficial Owner
is not a United States person and certain other conditions are
met or (2) the Beneficial Owner otherwise establishes an
exemption.
Payment of the proceeds from disposition of Capital
Securities (or Junior Subordinated Debentures) to or through a
United States office of a broker is subject to information
reporting and backup withholding unless the holder or beneficial
owner establishes an exemption from information reporting and
backup withholding.
Any amounts withheld from a holder of the Capital
Securities (or Junior Subordinated Debentures) under the backup
withholding rules will be allowed as a refund or a credit against
such holder's United States federal income tax liability,
provided the required information is furnished to the IRS.
BOOK-ENTRY ISSUANCE
The New Capital Securities initially will be represented by
one or more Capital Securities in registered, global form
(collectively, the "Global Capital Securities"). The Global
Capital Securities will be deposited upon issuance with the
Property Trustee as custodian for The Depository Trust Company
("DTC"), in New York, New York, and registered in the name of DTC
or its nominee, in each case for credit to an account of a direct
or indirect participant in DTC as described below.
Except as set forth below, the Global Capital Securities
may be transferred, in whole and not in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
Beneficial interests in the Global Capital Securities may not be
exchanged for Capital Securities in certificated form except in
the limited circumstances described below. See "-- Exchange of
Book-Entry Capital Securities for Certificated Capital
Securities."
Other Capital Securities will be issued only in registered,
certificated (i.e., non-global) form. Other Capital Securities
may not be exchanged for beneficial interests in any Global
Capital Securities except in the limited circumstances described
below. See "-- Exchange of Certificated Capital Securities for
Book-Entry Capital Securities."
Transfer of beneficial interests in the Global Capital
Securities will be subject to the applicable rules and procedures
of DTC and its direct or indirect participants (including, if
applicable, those of Euroclear and CEDEL), which may change from
time to time.
Depositary Procedures
DTC has advised the Trust and the Company that DTC is a
limited-purpose trust company created to hold securities for its
participating organizations (collectively, the "Participants")
and to facilitate the clearance and settlement of transactions in
those securities between Participants through electronic
book-entry changes in accounts of its Participants. The
Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations.
Access to DTC's system is also available to other entities such
as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Participant, either
directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interest
and transfer of ownership interest of each actual purchaser of
each security held by or on behalf of DTC are recorded on the
records of the Participants and Indirect Participants.
62
<PAGE>
DTC has also advised the Trust and the Company that,
pursuant to procedures established by it, (i) upon deposit of the
Global Capital Securities, DTC will credit the accounts of
Participants with portions of the principal amount of the Global
Capital Securities and (ii) ownership of such interests in the
Global Capital Securities will be shown on, and the transfer of
ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other
owners of beneficial interests in the Global Capital Securities).
All interests in a Global Capital Security, including those
held through Euroclear or CEDEL, may be subject to the procedures
and requirements of DTC. Those interests held through Euroclear
or CEDEL may also be subject to the procedures and requirements
of such system. The laws of some states require that certain
persons take physical delivery in certificated form of securities
that they own. Consequently, the ability to transfer beneficial
interests in a Global Capital Security to such persons will be
limited to that extent. Because DTC can act only on behalf of
Participants, which in turn act on behalf of Indirect
Participants and certain banks, the ability of a person having
beneficial interests in a Global Capital Security to pledge such
interests to persons or entities that do not participate in the
DTC system, or otherwise take actions in respect of such
interests, may be affected by the lack of a physical certificate
evidencing such interests. For certain other restrictions on the
transferability of the Capital Securities, see "-- Exchange of
Book-Entry Capital Securities for Certificated Capital
Securities" and "-- Exchange of Certificated Capital Securities
for Book-Entry Capital Securities."
Except as described below, owners of interests in the
Global Capital Securities will not have Capital Securities
registered in their name, will not receive physical delivery of
Capital Securities in certificated form and will not be
considered the registered owners or holders thereof for any
purpose.
Payments in respect of the Global Capital Security
registered in the name of DTC or its nominee will be payable by
the Property Trustee to DTC in its capacity as the registered
holder. The Property Trustee will treat the persons in whose
names the Capital Securities, including the Global Capital
Securities, are registered as the owners thereof for the purpose
of receiving such payments and for any and all other purposes
whatsoever. Consequently, neither the Property Trustee nor any
agent thereof has or will have any responsibility or liability
for (i) any aspect of DTC's records or any Participant's or
Indirect Participant's records relating to or payments made on
account of beneficial ownership interests in the Global Capital
Securities, or for maintaining, supervising or reviewing any of
DTC's records or any Participant's or Indirect Participant's
records relating to the beneficial ownership interests in the
Global Capital Securities or (ii) any other matter relating to
the actions and practices of DTC or any of its Participants or
Indirect Participants. DTC has advised the Trust and the Company
that its current practice, upon receipt of any payment in respect
of securities such as the Capital Securities, is to credit the
accounts of the relevant Participants with the payment on the
payment date unless DTC has reason to believe it will not receive
payment on such payment date. Payments by the Participants and
the Indirect Participants to the beneficial owners of Capital
Securities will be governed by standing instructions and
customary practices and will be the responsibility of the
Participants or the Indirect Participants and will not be the
responsibility of DTC, the Property Trustee or the Trust. Neither
the Trust nor the Property Trustee will be liable for any delay
by DTC or any of its Participants in identifying the beneficial
owners of the Capital Securities, and the Trust and the Property
Trustee may conclusively rely on and will be protected in relying
on instructions from DTC or its nominee for all purposes.
Except for trades involving only Euroclear or CEDEL
participants, interests in the Global Capital Securities will
trade in DTC's Same-Day Funds Settlement System and secondary
market trading activity
63
<PAGE>
in such interests will therefore settle in immediately
available funds, subject in all cases to the rules and procedures
of DTC and its participants.
Transfers between Participants in DTC will be effected in
accordance with DTC's procedures, and will be settled in same-day
funds. Transfers between participants in Euroclear or CEDEL will
be effected in the ordinary way in accordance with their
respective rules and operating procedures.
Subject to compliance with the transfer restrictions
applicable to the Capital Securities described herein,
cross-market transfers between the Participants in DTC, on the
one hand, and Euroclear or CEDEL participants, on the other hand,
will be effected through DTC in accordance with DTC's rules on
behalf of Euroclear or CEDEL, as the case may be, by its
respective depositary; however, such cross-market transactions
will require delivery of instructions to Euroclear or CEDEL, as
the case may be, by the counterparty in such system in accordance
with the rules and procedures and within the established
deadlines (Brussels time) of such system. Euroclear or CEDEL, as
the case may be, will, if the transaction meets its settlement
requirements, deliver instructions to its respective depositary
to take action to effect final settlement on its behalf by
delivering or receiving interests in the relevant Global Capital
Securities in DTC, and making or receiving payment in accordance
with normal procedures for same-day funds settlement applicable
to DTC. Euroclear participants and CEDEL participants may not
deliver instructions directly to the depositaries for Euroclear
or CEDEL.
Because of time zone differences, the securities account of
a Euroclear or CEDEL participant purchasing an interest in a
Global Capital Security from a Participant in DTC will be
credited, and any such crediting will be reported to the relevant
Euroclear or CEDEL participant, during the securities settlement
processing day (which must be a business day for Euroclear and
CEDEL) immediately following the settlement date of DTC. Cash
received in Euroclear or CEDEL as a result of sales of an
interest in a Global Capital Security by or through a Euroclear
or CEDEL participant to a Participant in DTC will be received
with value on the settlement date of DTC but will be available in
the relevant Euroclear or CEDEL cash account only as of the
business day for Euroclear or CEDEL following DTC's settlement
date.
DTC has advised the Trust and the Company that it will take
any action permitted to be taken by a holder of Capital
Securities only at the direction of one or more Participants to
whose account with DTC interests in the Global Capital Securities
are credited. However, if there is an Event of Default, DTC
reserves the right to exchange the Global Capital Securities for
legended Capital Securities in certificated form and to
distribute such Capital Securities to its Participants.
The information in this section concerning DTC, Euroclear
and CEDEL and their book-entry systems has been obtained from
sources that the Trust and the Company believe to be reliable,
but neither the Trust nor the Company takes responsibility for
the accuracy thereof.
Although DTC, Euroclear and CEDEL have agreed to the
foregoing procedures to facilitate transfers of interest in the
Regulation S Global Capital Securities and in the Restricted
Global Capital Securities among participants in DTC, Euroclear
and CEDEL, they are under no obligation to perform or to continue
to perform such procedures, and such procedures may be
discontinued at any time. Neither the Trust nor the Property
Trustee will have any responsibility for the performance by DTC,
Euroclear or CEDEL or their respective participants or indirect
participants of their respective obligations under the rules and
procedures governing their operations.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities
64
<PAGE>
A Global Capital Security is exchangeable for Capital
Securities in registered certificated form if (i) DTC (x)
notifies the Trust that it is unwilling or unable to continue as
Depositary for the Global Capital Security and the Trust
thereupon fails to appoint a successor Depositary or (y) has
ceased to be a clearing agency registered under the Exchange Act,
(ii) the Company in its sole discretion elects to cause the
issuance of the Capital Securities in certificated form or (iii)
there shall have occurred and be continuing an Event of Default
or any event which after notice or lapse of time or both would be
an Event of Default under the Declaration. In addition,
beneficial interests in a Global Capital Security may be
exchanged for certificated Capital Securities upon request but
only upon at least 20 days' prior written notice given to the
Property Trustee by or on behalf of DTC in accordance with
customary procedures. In all cases, certificated Capital
Securities delivered in exchange for any Global Capital Security
or beneficial interests therein will be registered in the names,
and issued in any approved denominations, requested by or on
behalf of the Depositary (in accordance with its customary
procedures).
Exchange of Certificated Capital Securities for Book-Entry Capital Securities
Capital Securities which will be issued in certificated
form may not be exchanged for beneficial interests in any Global
Capital Security unless such exchange occurs in connection with a
transfer of such certificated Capital Securities.
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other
employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") (a "Plan"), should
consider the fiduciary standards of ERISA in the context of the
Plan's particular circumstances before authorizing an investment
in the Capital Securities. Accordingly, among other factors, the
fiduciary should consider whether the investment would satisfy
the prudence and diversification requirements of ERISA and would
be consistent with the documents and instruments governing the
Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit
Plans, as well as individual retirement accounts and Keogh plans
subject to Section 4975 of the Code (also "Plans"), from engaging
in certain transactions involving "plan assets" with persons who
are "parties in interest" under ERISA or "disqualified persons"
under the Code (collectively, "Parties in Interest") with respect
to such Plan. A violation of these "prohibited transaction" rules
may result in an excise tax or other liabilities under ERISA
and/or Section 4975 of the Code for such persons, unless
exemptive relief is available under an applicable statutory or
administrative exemption. Employee benefit plans that are
governmental plans (as defined in Section 3(32) of ERISA),
certain church plans (as defined in Section 3(33) of ERISA) and
foreign plans (as described in Section 4(b)(5) of ERISA) are not
subject to the requirements of ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by
the U.S. Department of Labor (the "DOL"), the assets of the Trust
would be deemed to be "plan assets" of a Plan for purposes of
ERISA and Section 4975 of the Code if "plan assets" of the Plan
were used to acquire an equity interest in such Trust and no
exception were applicable under the Plan Assets Regulation. An
"equity interest" is defined under the Plan Assets Regulation as
any interest in an entity other than an instrument which is
treated as indebtedness under applicable local law and which has
no substantial equity features and specifically includes a
beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets
Regulation, the assets of the Trust would not be deemed to be
"plan assets" of investing Plans if, immediately after the most
recent acquisition of any equity interest in the Trust, less than
25% of the value of each class of equity interests in the Trust
65
<PAGE>
were held by Plans, other employee benefit plans not subject
to ERISA or Section 4975 of the Code (such as governmental,
church and foreign plans), and entities holding assets deemed to
be "plan assets" of any Plan (collectively, "Benefit Plan
Investors"). No assurance can be given that the value of the
Capital Securities held by Benefit Plan Investors will be less
than 25% of the total value of such Capital Securities at the
completion of the Exchange Offer or thereafter, and no monitoring
or other measures will be taken with respect to the satisfaction
of the conditions to this exception. All of the Common Securities
will be purchased and held by the Company.
Under another exception contained in the Plan Assets
Regulation, if the New Capital Securities were to qualify as
"publicly offered securities" under the Plan Assets Regulation
the assets of the Trust would not be deemed to be "plan assets"
by reason of a Plan's acquisition or holding of such securities.
The New Capital Securities would qualify as "publicly offered
securities" if, among other things, they are offered pursuant to
an effective registration statement, are owned by 100 or more
investors independent of the issuer and each other at the time of
the offering, and are subsequently registered under the Exchange
Act. It is expected that the 100 investor requirement will not be
satisfied and that the New Capital Securities will not be
registered under the Exchange Act.
Certain transactions involving the Trust could be deemed to
constitute direct or indirect prohibited transactions under ERISA
and Section 4975 of the Code with respect to a Plan if the
Capital Securities of the Trust were acquired with "plan assets"
of such Plan and assets of the Trust were deemed to be "plan
assets" of Plans investing in the Trust. For example, if the
Company is a Party in Interest with respect to an investing Plan
(either directly or by reason of its ownership of its
subsidiaries), extensions of credit between the Company and the
Trust (as represented by the Junior Subordinated Debentures and
the Guarantees) would likely be prohibited by Section
406(a)(I)(B) of ERISA and Section 4975(e)(1)(B) of the Code,
unless exemptive relief were available under an applicable
administrative exemption (see below).
The DOL has issued five prohibited transaction class
exemptions ("PTCEs") that may provide exemptive relief for direct
or indirect prohibited transactions resulting from the purchase
or holding of the Capital Securities, assuming that assets of the
Trust were deemed to be "plan assets" of Plans investing in the
Trust (see above). Those class exemptions are PTCE 96-23 (for
certain transactions determined by in-house asset managers), PTCE
95-60 (for certain transactions involving insurance company
general accounts), PTCE 91-38 (for certain transactions involving
bank collective investment funds), PTCE 90-1 (for certain
transactions involving insurance company separate accounts), and
PTCE 84-14 (for certain transactions determined by independent
qualified asset managers).
Because the Capital Securities may be deemed to be equity
interests in the Trust for purposes of applying ERISA and Section
4975 of the Code, the Capital Securities may not be purchased or
held by any Plan, any entity whose underlying assets include
"plan assets" by reason of any Plan's investment in the entity (a
"Plan Asset Entity") or any person investing "plan assets" of any
Plan, unless such purchaser or holder is eligible for the
exemptive relief available under PTCE 96-23, 95-60, 91-38, 90-1
or 84-14 or another applicable exemption. Any purchaser or holder
of the Capital Securities or any interest therein will be deemed
to have represented by its purchase and holding thereof that
either (a) it is not a Plan or a Plan Asset Entity and is not
purchasing such securities on behalf of or with "plan assets" of
any Plan or (b) (i) it is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90- 1 or 84-14 or
another applicable exemption with respect to such purchase or
holding, (ii) the Company and the Administrators are not
"fiduciaries," within the meaning of Section 3(21) of ERISA and
the regulations thereunder, with respect to the acquisition of
its interest in the Capital Securities or the Junior Subordinated
Debentures, and (iii) in purchasing the Capital Securities it
approved the purchase and holding of the Junior Subordinated
Debentures and the appointment and retention of the Issuer
Trustees.
66
<PAGE>
Any purchaser or holder of the Old Capital Securities or any
interest therein will be deemed to have represented by its
exchange thereof for New Capital Securities in the Exchange Offer
that either (a) it is not a Plan or a Plan Asset Entity and the
Old Capital Securities being exchanged by it are not "plan
assets" of any Plan or (b) (i) it is eligible for the exemptive
relief available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or
another applicable exemption with respect to such exchange, (ii)
the Company and the Administrators are not "fiduciaries," within
the meaning of Section 3(21) of ERISA and the regulations
thereunder, with respect to the acquisition of its interest in
the New Capital Securities or the New Junior Subordinated
Debentures, and (iii) in exchanging the Old Capital Securities
for the New Capital Securities in the Exchange Offer, it approved
the purchase and holding of the New Junior Subordinated
Debentures and the appointment and retention of the Issuer
Trustees.
Due to the complexity of these rules and the penalties that
may be imposed upon persons involved in non-exempt prohibited
transactions, it is particularly important that fiduciaries or
other persons considering purchasing the Capital Securities on
behalf of or with "plan assets" of any Plan consult with their
counsel regarding the potential consequences if the assets of the
Trust were deemed to be "plan assets" and the availability of
exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14,
or another applicable exemption.
Governmental plans and certain church plans are not subject
to ERISA and are also not subject to the prohibited transaction
provisions of Section 4975 of the Code. However, state laws or
regulations governing the investment and management of the assets
of such plans may contain fiduciary and prohibited transaction
provisions similar to those under ERISA and the Code discussed
above. Accordingly, fiduciaries of governmental plans and church
plans, in consultation with their advisers, should consider the
impact of their respective state laws on investments in the
Capital Securities, and the considerations discussed above, to
the extent applicable.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for
its own account pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such New Capital Securities. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Capital
Securities received in exchange for Old Capital Securities where
such Old Capital Securities were acquired as a result of
market-making activities or other trading activities. The Company
and the Trust have agreed that, starting on the date on which the
Exchange Offer is consummated and ending on the close of business
one year after such date, they will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until ________,
1997, all dealers effecting transactions in the New Capital
Securities may be required to deliver a prospectus.
The Company and the Trust will not receive any proceeds from
any sale of New Capital Securities by broker-dealers. New Capital
Securities received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in
one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the
New Capital Securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to
or through brokers or dealers who may receive compensation in the
form of commissions or concessions from any such broker-dealer
and/or the purchasers of any such New Capital Securities. Any
broker-dealer that resells New Capital Securities that were
received by it for its own account pursuant to the Exchange Offer
and any broker or dealer that participates in a distribution of
67
<PAGE>
such New Capital Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any
profit on any such resale of New Capital Securities and any
commissions or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of one year after the date on which the
Exchange Offer is consummated, the Company and the Trust will
promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer
that requests such documents in the Letter of Transmittal. The
Company and the Trust have agreed to pay all expenses incident to
the Exchange Offer (including the expenses of one counsel for the
Holders of the New Capital Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the
Holders of the New Capital Securities (including any
broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of
the New Capital Securities will be passed upon for the Trust and
the Company by Richards, Layton & Finger, Wilmington, Delaware.
The validity under New York law of the New Junior Subordinated
Debentures and the New Guarantee will be passed upon for the
Company and the Trust by Cleary, Gottlieb, Steen & Hamilton, New
York, New York. Cleary, Gottlieb, Steen & Hamilton will rely as
to certain matters of Delaware law on the opinion of Richards,
Layton & Finger. Certain United States federal income tax matters
also will be passed upon for the Company and the Trust by Cleary,
Gottlieb, Steen & Hamilton.
INDEPENDENT ACCOUNTANTS
The consolidated financial statements for the year ended
December 31, 1996 incorporated herein by reference from the
Company's Annual Report on Form 10-K for the year ended December
31, 1996 have been audited by Price Waterhouse LLP, independent
accountants, as stated in their report, which is incorporated
herein by reference. The consolidated financial statements for
the years ended December 31, 1995 and 1994 incorporated herein by
reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 have been audited by KPMG Peat
Marwick LLP, independent accountants, as stated in their report,
which is incorporated herein by reference.
68
<PAGE>
=======================================
No person has been authorized to
give any information or to make any
representations other than those
contained in this Prospectus or the
accompanying Letter of Transmittal,
and, if given or made, such information
or representation must not be
relied upon as having been authorized.
This Prospectus and the accompanying
Letter of Transmittal do not constitute
an offer to sell or the solicitation
of an offer to buy any securities other
than the securities described in this
Prospectus and the accompanying Letter of
Transmittal or an offer to sell or the
solicitation of an offer to buy such
securities in any circumstances in which
such offer or solicitation is unlawful.
Neither the delivery of this Prospectus
or the accompanying Letter of Transmittal
nor any sale made hereunder shall, under
any circumstances, create any implication
that the information contained herein is correct
as of any time subsequent to the date
of such information.
---------------
TABLE OF CONTENTS
Page
----
Available Information.... 6
Incorporation of Certain
Information by
Reference............... 6
Summary.................. 8
Risk Factors............. 16
Use of Proceeds.......... 21
Ratio of Earnings to
Combined Fixed
Charges and Preferred
Stock Dividends......... 22
Accounting Treatment..... 22
Regulatory Treatment..... 22
Capitalization........... 23
The Trust................ 23
The Exchange Offer ...... 24
Description of Capital
Securities ............. 34
Description of Junior
Subordinated Debentures 44
Description of
Guarantee .............. 53
Relationship Among the
Capital Securities,
the Junior Subordinated
Debentures
and the Guarantee ...... 55
Certain United States
Federal Income Tax
Consequences............ 57
Book-Entry Issuance...... 62
ERISA Considerations..... 65
Plan of Distribution..... 67
Legal Matters............ 68
Independent Auditors..... 68
=====================================
GREENPOINT
CAPITAL TRUST I
$200,000,000
9.10% Subordinated Capital Income
Securities
(Liquidation Amount $1,000 per
Capital Security)
Fully and Unconditionally
Guaranteed to the Extent Set Forth
Herein by
GREENPOINT FINANCIAL CORP.
---------------
PROSPECTUS
Dated _______ __, 1997
---------------
=======================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
(i) Section 102(b)(7) of the General Corporation Law of the
State of Delaware provides that a Delaware corporation may
include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to
the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such
provision may not eliminate or limit the liability of a director
for any breach of the director's duty of loyalty to the
corporation or its stockholders, for actions or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, for the payment of unlawful dividends, or for
any transaction from which the director derived an improper
personal benefit. Article Eleventh of the Amended and Restated
Certificate of Incorporation of GreenPoint contains a provision
limiting the personal liability of a director to GreenPoint and
its stockholders for monetary damages for a breach of fiduciary
duty as a director to the full extent permitted by law.
(ii) Additionally, Section 145, "Indemnification of
Officers, Directors, Employees, and Agents; Insurance", of the
General Corporation Law of the State of Delaware provides as
follows:
"(a) A corporation may indemnify any person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the corporation and
except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall
have been adjudged to be liable to the
II-1
<PAGE>
corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of this section, or
in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b)
of this section ( unless ordered by a court) shall be made
by the corporation only as authorized in the specific case
upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set
forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there
are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by
the stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding
may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections
of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have
the power to indemnify him against such liability under
this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued,
would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent
of such constituent
II-2
<PAGE>
corporation, or is or was serving at the request of such
constituent corporation as director, officer, employee or
agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position
under this section with respect to the resulting or
surviving corporation as he would have with respect to such
constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be
in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery is hereby vested with
exclusive jurisdiction to hear and determine all actions
for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. The
Court of Chancery may summarily determine a corporation's
obligation to advance expenses (including attorneys' fees).
(iii) Article Tenth of the Amended and Restated Certificate
of Incorporation of GreenPoint provides for indemnification of
directors and officers of GreenPoint against liability they may
incur in their capacities as such to the full extent permitted
under Delaware law.
(iv) GreenPoint maintains insurance policies that insure
the directors and officers of GreenPoint against loss arising
from any claim or claims made against such directors or officers,
individually or collectively, by reason of certain wrongful acts
such as any actual or alleged error or misstatement or misleading
statement or act, omission, neglect or breach of duty by the
officers and directors in the discharge of their duties. The
policies also insure GreenPoint against loss for which GreenPoint
is required to indemnify or for which GreenPoint, to the extent
permitted by law, has indemnified the officers or directors
arising from any claim against any of the directors or officers
of GreenPoint by reason of the wrongful acts described above. The
policies do not insure GreenPoint's directors and officers
against loss in connection with any claim relating to any
deliberately dishonest or fraudulent act or omission, any
criminal or malicious act or omission, any willful violation of
law or any accounting for profits for the purchase or sale of
securities of GreenPoint within the meaning of Section 16(b) of
the Exchange Act.
(v) Under the Declaration, GreenPoint has agreed to
indemnify each of the Trustees of the Trust, and to hold the
Trustees harmless against, any loss, liability or expense
incurred without negligence or bad faith on the Trustees' part,
arising out of or in connection with the acceptance or
administration of the Declaration, including the costs and
expenses of defending themselves against or
II-3
<PAGE>
investigating any claim or liability in connection with the
exercise or performance of any of their powers or duties under
the Declaration.
II-4
<PAGE>
Item 21. Exhibits and Financial Statement Schedules.
Exhibit No. Description
- ----------- ------------
4.1 Indenture, dated as of June 3, 1997, between GreenPoint and
The Bank of New York, as Trustee, in respect of GreenPoint's
9.10% Junior Subordinated Debentures due 2027.*
4.2 Form of GreenPoint's 9.10% Junior Subordinated Debentures due
2027 (included in the Indenture filed as Exhibit 4.1 to
this Registration Statement).*
4.3 Certificate of Trust of GreenPoint Capital Trust I,
dated May 23, 1997.*
4.4 Amended and Restated Declaration of Trust of
GreenPoint Capital Trust I, dated as of
June 3, 1997, among GreenPoint, as sponsor, the
Administrators thereof, The Bank of New York
(Delaware), as Delaware Trustee, The Bank of New
York, as Institutional Trustee, and the holders
from time to time of undivided interests in the
assets of GreenPoint Capital Trust I.*
4.5 Form of Capital Security Certificate for GreenPoint
Capital Trust I (included in the Amended and Restated
Declaration of Trust filed as Exhibit 4.4 to this
Registration Statement).*
4.6 Form of Guarantee Agreement, dated as of
______, 1997, between GreenPoint and The Bank of
New York, as Guarantee Trustee.*
4.7 Registration Rights Agreement, dated June 3, 1997,
among GreenPoint, GreenPoint Capital Trust I and
Lehman Brothers Inc., as Representative of the
Initial Purchasers.*
5.1 Opinion of Richards, Layton & Finger as to the
validity of the New Capital Securities
to be issued by GreenPoint Capital Trust I.**
5.2 Opinion of Cleary, Gottlieb, Steen & Hamilton as
to the validity of the New Junior
Subordinated Debentures and the New Guarantee
to be issued by GreenPoint.**
8 Opinion of Cleary, Gottlieb, Steen & Hamilton regarding
certain federal income tax matters.**
23.1 Consent of Price Waterhouse LLP.*
23.2 Consent of KPMG Peat Marwick LLP.*
23.3 Consent of Richards, Layton & Finger (included
in Exhibit 5.1 to this Registration Statement).**
23.4 Consent of Cleary, Gottlieb, Steen & Hamilton
(included in Exhibit 5.2 to this Registration Statement).**
II-5
<PAGE>
23.5 Consent of Cleary, Gottlieb, Steen & Hamilton
(included in Exhibit 8 to this Registration Statement).**
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of The Bank
of New York to act as trustee under the Indenture.*
25.2 Form T-1 Statement of Eligibility of The Bank of New York
to act as trustee under the Amended and Restated Declaration
of Trust.*
25.3 Form T-1 Statement of Eligibility of The Bank of
New York to act as trustee under the Guarantee for the
benefit of the holders of Capital Securities.*
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Exchange Agent Agreement.*
- --------
* Filed herewith.
** To be filed by amendment.
Item 22. Undertakings.
(a) Each of the undersigned registrants hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of a registrant pursuant to the
foregoing provisions, or otherwise, each of the undersigned
registrants has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant
of expenses incurred or paid by a director, officer or
controlling director, officer or controlling person of a
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, each
of the undersigned registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
II-6
<PAGE>
whether such indemnification by it is against public policy as
expressed in the act and will be governed by the final
adjudication of such issue.
(c) Each of the undersigned registrants hereby undertakes
to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13
of this Form, within one business day of receipt of such request,
and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained
in documents filed subsequent to the effective date of the
registration statement through the date of responding to the
request.
(d) Each of the undersigned registrants hereby undertakes
to supply by means of post-effective amendment all information
concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in the
registration statement when it became effective.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on
August 19, 1997.
GREENPOINT FINANCIAL CORP.
(Registrant)
By /s/ Thomas S. Johnson
_______________________________
Thomas S. Johnson
Chairman of the Board, President,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dated indicated.
Name Title Date
------ ------ ------
/s/ Thomas S. Johnson
________________________ Chairman of the Board, President, August 19, 1997
Thomas S. Johnson Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Charles P. Richardson
________________________ Executive Vice President and August 19, 1997
Charles P. Richardson Chief Financial Officer (Principal
Financial Officer)
/s/ Mary Beth Farrell
________________________ Senior Vice President and Comptroller August 19, 1997
Mary Beth Farrell (Principal Accounting Officer)
/s/ Bernard S. Berman
________________________ Director August 19, 1997
Bernard S. Berman*
/s/ Edward C. Bessey
________________________ Director August 19, 1997
Edward C. Bessey*
/s/ Dan F. Huebner
________________________ Director August 19, 1997
Dan F. Huebner*
/s/ William M. Jackson
________________________ Director August 19, 1997
William M. Jackson*
II-8
<PAGE>
Name Title Date
------ ------ ------
/s/ Susan J. Kropf
________________________ Director August 19, 1997
Susan J. Kropf*
/s/ Robert M. McLane
________________________ Director August 19, 1997
Robert M. McLane*
/s/ Charles B. McQuade
________________________ Director August 19, 1997
Charles B. McQuade*
/s/ Alvin N. Puryear
________________________ Director August 19, 1997
Alvin N. Puryear*
/s/ Robert P. Quinn
________________________ Director August 19, 1997
Robert P. Quinn*
/s/ Edward C. Schmults
________________________ Director August 19, 1997
Edward C. Schmults*
/s/ Wilfred O. Uhl
________________________ Director August 19, 1997
Wilfred O. Uhl*
/s/ Robert Vizza
________________________ Director August 19, 1997
Robert Vizza*
/s/ Jules Zimmerman
________________________ Director August 19, 1997
Jules Zimmerman*
*By /s/ Howard S. Bluver
________________________
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on
August 19, 1997.
GREENPOINT CAPITAL TRUST I
(Registrant)
By /s/ Mary Beth Farrell
_____________________________
Mary Beth Farrell
Administrator
By /s/ Robert Beck
_____________________________
Robert Beck
Administrator
II-10
<PAGE>
GREENPOINT FINANCIAL CORP.
TO
THE BANK OF NEW YORK
a New York banking corporation, Trustee
INDENTURE
Dated as of June 3, 1997
$200,000,000
9.10% Junior Subordinated Debentures due 2027
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION... 1
SECTION 101. Definitions....................................... 1
Act ..................................................... 2
Adjusted Treasury Rate.................................... 2
Affiliate................................................. 2
Authenticating Agent...................................... 2
Board of Directors........................................ 3
Board Resolution.......................................... 3
Business Day.............................................. 3
Capital Securities........................................ 3
Cedel..................................................... 3
Closing Date.............................................. 3
Commission................................................ 3
Common Securities......................................... 3
Company................................................... 3
Company Request........................................... 3
Company Order............................................. 3
Comparable Treasury Issue................................. 3
Comparable Treasury Price................................. 4
Corporate Trust Office.................................... 4
Covenant Defeasance....................................... 4
Custodian................................................. 4
Declaration............................................... 4
Defaulted Interest........................................ 4
Depositary................................................ 4
DWAC ..................................................... 4
Event of Default.......................................... 4
Exchange Act.............................................. 4
Extension Period.......................................... 4
Euroclear................................................. 4
Federal Reserve........................................... 4
Global Security........................................... 4
Guarantee................................................. 4
Holder.................................................... 5
Indebtedness.............................................. 5
Indenture................................................. 5
Initial Purchasers........................................ 5
Institutional Accredited Investor......................... 5
Interest Payment Date..................................... 6
-i-
<PAGE>
Page
----
Investment Company Event.................................. 6
Junior Subordinated Securities............................ 6
Legal Defeasance.......................................... 6
Maturity.................................................. 6
New Junior Subordinated Securities........................ 6
Officers' Certificate..................................... 6
Opinion of Counsel........................................ 7
Outstanding............................................... 7
Paying Agent.............................................. 7
Person.................................................... 7
Predecessor Security...................................... 7
Private Placement Legend.................................. 7
Property Trustee.......................................... 8
Qualified Institutional Buyer or QIB...................... 8
Quotation Agent........................................... 8
Redemption Date........................................... 8
Redemption Price.......................................... 8
Reference Treasury Dealer Quotations...................... 8
Registration Rights Agreement............................. 8
Regular Record Date....................................... 8
Regulation S.............................................. 8
Regulation S Global Security.............................. 8
Regulatory Capital Event.................................. 8
Remaining Life............................................ 9
Responsible Officer....................................... 9
Restricted Global Security................................ 9
Restricted Period......................................... 9
Restricted Security....................................... 9
Rule 144A................................................. 9
Securities................................................ 9
Securities Act............................................ 9
Security Register......................................... 9
Security Registrar........................................ 9
Special Event............................................. 9
Special Record Date....................................... 9
Stated Maturity........................................... 9
Subsidiary................................................ 9
Tax Event................................................. 10
Treasury Rate............................................. 10
Trust..................................................... 10
Trustee................................................... 10
-ii-
<PAGE>
Page
----
Trust Indenture Act....................................... 10
U.S. Government Obligations............................... 11
Vice President............................................ 11
SECTION 102. Compliance Certificates and Opinions.............. 11
SECTION 103. Form of Documents Delivered to Trustee............ 11
SECTION 104. Acts of Holders; Record Dates..................... 12
SECTION 105. Notices, Etc. to Trustee and the Company.......... 13
SECTION 106. Notice to Holders; Waiver......................... 13
SECTION 107. Conflict With Trust Indenture Act................. 13
SECTION 108. Effect of Headings and Table of Contents.......... 14
SECTION 109. Separability Clause............................... 14
SECTION 110. Benefits of Indenture............................. 14
SECTION 111. GOVERNING LAW..................................... 14
SECTION 112. Legal Holidays.................................... 14
ARTICLE TWO
SECURITY FORMS........................ 15
ARTICLE THREE
THE SECURITIES........................ 16
SECTION 301. Title and Terms................................... 16
SECTION 302. Denominations..................................... 17
SECTION 303. Execution, Authentication, Delivery and Dating.... 18
SECTION 304. Temporary Securities.............................. 18
-iii-
<PAGE>
Page
----
SECTION 305. Registration; Registration of Transfer and
Exchange..................................... 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.. 20
SECTION 307. Payment of Interest; Interest Rights Preserved.... 21
SECTION 308. Persons Deemed Owners............................. 22
SECTION 309. Cancellation...................................... 22
SECTION 310. Computation of Interest........................... 22
SECTION 311. Right of Set-off.................................. 22
SECTION 312. CUSIP Numbers..................................... 23
SECTION 313. Global Securities................................. 23
SECTION 314. Restrictive Legend................................ 25
SECTION 315. Special Transfer Provisions....................... 27
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE............ 30
SECTION 401. Satisfaction and Discharge of Indenture........... 30
SECTION 402. Legal Defeasance.................................. 31
SECTION 403. Covenant Defeasance............................... 31
SECTION 404. Conditions to Legal Defeasance or Covenant
Defeasance................................... 32
SECTION 405. Application of Trust Money........................ 33
SECTION 406. Indemnity for U.S. Government Obligations......... 33
-iv-
<PAGE>
Page
----
ARTICLE FIVE
REMEDIES........................... 33
SECTION 501. Events of Default................................. 33
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.................................... 34
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee....................... 35
SECTION 504. Trustee may File Proofs of Claim.................. 36
SECTION 505. Trustee may Enforce Claims Without Possession
of Securities................................ 36
SECTION 506. Application of Money Collected.................... 36
SECTION 507. Limitation on Suits............................... 37
SECTION 508. Unconditional Right of Holders to Receive
Principal and Interest; Capital
Security Holders' Rights..................... 37
SECTION 509. Restoration of Rights and Remedies................ 38
SECTION 510. Rights and Remedies Cumulative.................... 38
SECTION 511. Delay or Omission not Waiver...................... 38
SECTION 512. Control by Holders................................ 39
SECTION 513. Waiver of Past Defaults........................... 39
SECTION 514. Undertaking for Costs............................. 39
SECTION 515. Waiver of Stay or Extension Laws.................. 40
ARTICLE SIX
TRUSTEE........................... 40
SECTION 601. Certain Duties and Responsibilities............... 40
-v-
<PAGE>
Page
----
SECTION 602. Notice of Defaults................................ 40
SECTION 603. Certain Rights of Trustee......................... 41
SECTION 604. Not Responsible for Recitals or Issuance
of Securities................................ 42
SECTION 605. Trustee and Other Agents may Hold Securities...... 42
SECTION 606. Money Held in Trust............................... 42
SECTION 607. Compensation; Reimbursement; and Indemnity........ 42
SECTION 608. Disqualification; Conflicting Interests........... 43
SECTION 609. Corporate Trustee Required; Eligibility........... 43
SECTION 610. Resignation and Removal; Appointment of Successor. 44
SECTION 611. Acceptance of Appointment by Successor............ 45
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business....................... 45
SECTION 613. Preferential Collection of Claims Against Company. 46
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...... 46
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders................................... 46
SECTION 702. Preservation of Information; Communications
to Holders................................... 46
SECTION 703. Reports by Trustee................................ 46
SECTION 704. Reports by Company................................ 47
-vi-
<PAGE>
Page
----
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..... 47
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms................................ 47
SECTION 802. Successor Person Substituted...................... 48
ARTICLE NINE
SUPPLEMENTAL INDENTURES................... 49
SECTION 901. Supplemental Indentures Without Consent of
Holders...................................... 49
SECTION 902. Supplemental Indentures With Consent of Holders... 49
SECTION 903. Execution of Supplemental Indentures.............. 50
SECTION 904. Effect of Supplemental Indentures................. 50
SECTION 905. Conformity With Trust Indenture Act............... 50
SECTION 906. Reference in Securities to Supplemental
Indentures................................... 51
ARTICLE TEN
COVENANTS.......................... 51
SECTION 1001. Payment of Principal and Interest................ 51
SECTION 1002. Maintenance of Office or Agency.................. 51
SECTION 1003. Money for Security Payments to be Held in Trust.. 51
SECTION 1004. Statements by Officers as to Default............. 52
SECTION 1005. Existence........................................ 53
SECTION 1006. Maintenance of Properties........................ 53
SECTION 1007. Payment of Taxes and Other Claims................ 53
-vii-
<PAGE>
Page
----
SECTION 1008. Waiver of Certain Covenants...................... 53
SECTION 1009. Payment of the Trust's Costs and Expenses........ 54
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES................. 55
SECTION 1101. Securities Subordinate to Indebtedness........... 55
SECTION 1102. Default on Indebtedness.......................... 55
SECTION 1103. Prior Payment of Indebtedness Upon
Acceleration of Securities.................. 55
SECTION 1104. Liquidation; Dissolution; Bankruptcy............. 56
SECTION 1105. Subrogation...................................... 58
SECTION 1106. Trustee to Effectuate Subordination.............. 59
SECTION 1107. Notice by the Company............................ 59
SECTION 1108. Rights of the Trustee; Holders of Indebtedness... 60
SECTION 1109. Subordination May Not Be Impaired................ 60
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Optional Redemption; Conditions to
Optional Redemption......................... 61
SECTION 1202. Applicability of Article......................... 62
SECTION 1203. Election to Redeem; Notice to Trustee............ 62
SECTION 1204. Selection by Trustee of Securities to be Redeemed 62
SECTION 1205. Notice of Redemption............................. 62
SECTION 1206. Deposit of Redemption Price...................... 63
-viii-
<PAGE>
Page
----
SECTION 1207. Securities Payable on Redemption Date............ 63
-ix-
<PAGE>
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- ----------- -------
Section 310(a)(1) ....................................609
(a)(2) .........................................609
(a)(3) ..............................Not Applicable
(a)(4) ..............................Not Applicable
(b) .......................................608, 610
Section 311(a) .......................................613
(b) ............................................613
Section 312(a) .......................................701
(b) .........................................702(b)
(c) .........................................702(c)
Section 313(a) ....................................703(a)
(a)(4) ...................................101, 1004
(b) .........................................703(a)
(c) .........................................703(a)
(d) .........................................703(b)
Section 314(a) .......................................704
(b) .................................Not Applicable
(c)(1) .........................................102
(c)(2) .........................................102
(c)(3) ..............................Not Applicable
(d) .................................Not Applicable
(e) ............................................102
Section 315(a) .......................................601
(b) ............................................602
(c) ............................................601
(d) ............................................601
(e) ............................................514
Section 316(a) .......................................101
(a)(1)(A) ......................................502
(a)(1)(B) ......................................513
(a)(2) ..............................Not Applicable
(b) ............................................508
(c) .........................................104(c)
Section 317(a)(1) ....................................503
(a)(2) .........................................504
(b) ...........................................1003
Section 318(a) .......................................107
<PAGE>
This INDENTURE is dated as of June 3, 1997, between
GREENPOINT FINANCIAL CORP., a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company"), having its principal office at 90 Park Avenue,
New York, New York 10016, and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 9.10% Junior
Subordinated Debentures due 2027 (the "Junior Subordinated
Securities") and its 9.10% New Junior Subordinated Debentures due
2027 (the "New Junior Subordinated Securities", and together with
the Junior Subordinated Securities, the "Securities") to be
issued in exchange for the Junior Subordinated Securities.
WHEREAS, GreenPoint Capital Trust I (the "Trust") has
offered to the public $200,000,000 aggregate liquidation amount
of its 9.10% Subordinated Capital Income Securities (the "Capital
Securities") representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such
offering and the $6,185,567 in proceeds from the issuance of its
Common Securities in $206,185,567 aggregate principal amount of
the Securities.
WHEREAS, to provide the terms and conditions upon
which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this
Indenture.
WHEREAS, all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as
expressly provided or unless the context otherwise requires:
<PAGE> 2
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural
as well as the singular and the masculine as well as the
feminine;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles;
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision;
(5) a reference to any Person shall include its
successor and assigns;
(6) a reference to any agreement or instrument shall
mean such agreement or instrument as supplemented, modified,
amended or amended and restated and in effect from time to time;
(7) a reference to any statute, law, rule or
regulation, shall include any amendments thereto applicable to
the relevant Person, and any successor statute, law, rule or
regulation; and
(8) a reference to any particular rating category
shall be deemed to include any corresponding successor category,
or any corresponding rating category issued by a successor or
subsequent rating agency.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Adjusted Treasury Rate" means, with respect to any
Redemption Date, the Treasury Rate plus (i) 1.50% if such
Redemption Date occurs on or before June 1, 1998 or (ii) .50% if
such Redemption Date occurs after June 1, 1998.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by
the Trustee to act on behalf of the Trustee to authenticate
Securities.
<PAGE> 3
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee of that
board as the context requires.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day other than a Saturday or
Sunday or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to
remain closed or a day on which the Corporate Trust Office of the
Trustee, or the principal corporate trust office of the Property
Trustee, under the Declaration, is closed for business.
"Capital Securities" has the meaning specified in the
Recitals to this instrument.
"Cedel" means Cedel, S.A.
"Closing Date" means June 3, 1997.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Securities" means the common securities
issued by the Trust.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Comparable Treasury Issue" means with respect to any
Redemption Date the United States Treasury security selected by
the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to
the Remaining Life. If no United States Treasury security has a
maturity which is within a period from three months before to
three months after May 30, 2007, the two most closely
corresponding United States Treasury securities
<PAGE> 4
shall be used as the Comparable Treasury Issue, and the Treasury
Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
"Comparable Treasury Price" means (A) the average of
three Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Indenture Trustee
obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Corporate Trust Office" means the principal office of
the Trustee in the City of New York, at which at any particular
time its corporate trust business shall be administered and which
at the date of this Indenture is located at 101 Barclay Street,
Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Trustee Administration.
"Covenant Defeasance" has the meaning specified in
Section 403.
"Custodian" means the custodian for the time being of
any Global Security.
"Declaration" means the Amended and Restated
Declaration of Trust, dated as of June 3, 1997, as amended,
modified or supplemented from time to time, among the trustees of
the Trust named therein, the Company, as sponsor, and the holders
from time to time of undivided beneficial ownership interests in
the assets of the Trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to Securities
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities.
"DWAC" means Deposit and Withdrawal At Custodian
Service.
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor
legislation.
"Extension Period" has the meaning specified in
Section 301.
"Euroclear" means Morgan Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear System.
"Federal Reserve" means the Board of Governors of
the Federal Reserve System.
"Global Security" means a Security that evidences all
or part of the Securities and is authenticated and delivered to,
and registered in the name of, the Depositary for such Securities
or a nominee thereof.
<PAGE> 5
"Guarantee" means the Guarantee Agreement, dated as of
June 3, 1997, made by the Company in favor of The Bank of New
York as trustee thereunder for the benefit of the Holders (as
defined therein) of the Capital Securities and the holder of the
Common Securities.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness" means, with respect to any Person,
whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) every obligation of
such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar
instruments of such Person, including obligations incurred in
connection with the acquisition of property, assets or
businesses, (iii) every reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances or
similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary
course of business), (v) every capital lease obligation of such
Person, (vi) every obligation of such Person for claims (as
defined in Section 101(4) of the United States Bankruptcy Code of
1978, as amended) in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts
and similar arrangements and (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case,
such Person has guaranteed or is responsible or liable, directly
or indirectly, as obligor or otherwise; provided that
"Indebtedness" shall not include (a) any obligations which, by
their terms, are expressly stated to rank pari passu in right of
payment with, or to not be superior in right of payment to, the
Securities, (b) any Indebtedness of the Company which when
incurred and without respect to any election under Section
1111(b) of the United States Bankruptcy Code of 1978, as amended,
was without recourse to the Company, (c) any Indebtedness of the
Company to any of its subsidiaries, (d) Indebtedness of the
Company to any employee or (e) any indebtedness in respect of
debt securities issued to any trust, or a trustee of such trust,
partnership or other entity affiliated with the Company that is a
financing entity of the Company in connection with the issuance
of such financing entity of securities that are similar to the
Capital Securities.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Initial Purchasers" means Lehman Brothers Inc., J.P.
Morgan Securities Inc. and Keefe, Bruyette & Woods, Inc.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as the term is
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
<PAGE> 6
"Interest Payment Date", when used with respect to any
installment of interest on a Security, means the date specified
in such Security as the fixed date on which an installment of
interest with respect to the Securities is due and payable.
"Investment Company Event" means the receipt by the
Trust of an Opinion of Counsel having a recognized national
securities practice to the effect that, as a result of the
occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or will be
considered an "investment company" that is required to be
registered under the Investment Company Act of 1940 as amended,
which Change in 1940 Act Law becomes effective on or after
the date of original issuance of the Securities.
"Junior Subordinated Securities" has the meaning
specified in the Recitals to this instrument.
"Legal Defeasance" has the meaning specified in
Section 402.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security becomes
due and payable as therein or herein provided, whether at the
Stated Maturity (which may be extended as therein or herein
provided) or by declaration of acceleration, call for redemption
or otherwise.
"New Junior Subordinated Securities" has the meaning
specified in the Recitals to this instrument.
"Officers' Certificate" means a certificate signed on
behalf of the Company by the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each officer signing the
Officers' Certificate on behalf of the Company has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on behalf
of the Company in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
<PAGE> 7
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of
counsel, who may be an employee of or counsel to the Company, or
may be other counsel reasonably acceptable to the Trustee. An
opinion of counsel may rely on certificates as to matters of
fact.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
authenticated and delivered under this Indenture, except: (i)
Securities cancelled by the Trustee or delivered to the Trustee
for cancellation; (ii) Securities for whose payment or redemption
money in the necessary amount has been deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holder of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Securities which have been paid pursuant to
Section 306, or in exchange or for in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the holders of the
requisite principal amount of Outstanding Securities are present
at a meeting of holders of Securities for quorum purposes or have
consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or
modification hereunder, Notes held for the account of the
Company, any of its subsidiaries or any of its affiliates shall
be disregarded and deemed not to be Outstanding, except that in
determining whether the Trustee shall be protected in making such
a determination or relying upon any such quorum, consent or vote,
only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
"Paying Agent" means any Person authorized by the
Company to pay the principal of or interest on any Securities on
behalf of the Company.
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion of the
same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
<PAGE> 8
"Private Placement Legend" has the meaning specified
in Section 314 of this Indenture.
"Property Trustee" has the meaning set forth in the
Declaration.
"Qualified Institutional Buyer" or "QIB" shall have
the meaning specified in Rule 144A under the Securities Act.
"Quotation Agent" means (i) Lehman Brothers Inc. and
its successors; provided, however, that if the foregoing shall
cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer selected by the Company.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any Redemption
Date, the average, as determined by the Company, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing
to the Company and reported in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. New York City time, on the
third business day preceding such Redemption Date.
"Registration Rights Agreement" means the Registration
Rights Agreement dated the date hereof between the Company and
the Initial Purchasers for the benefit of themselves and the
Holders (as defined therein) of the Capital Securities as the
same may be amended from time to time in accordance with the
terms thereof.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the 15th day of the month of the
relevant Interest Payment Date.
"Regulation S" means Regulation S under the Securities
Act and any successor regulation thereto.
"Regulation S Global Security" means any Global
Security or Securities evidencing Securities that are to be
traded pursuant to Regulation S.
"Regulatory Capital Event" means that the Company
shall have received an opinion of independent bank regulatory
counsel experienced in such matters to the effect that, as a
result of (a) any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder)
of the United States or any rules, guidelines or policies of the
Federal Reserve or (b) any official administrative pronouncement
or judicial
<PAGE> 9
decision for interpreting or applying such laws or
regulations which amendment or change is effective or such
pronouncement or decision is announced on or after the date of
original issuance of the Capital Securities, the Capital
Securities do not constitute, or within 90 days of the date
thereof, will not constitute Tier I capital (or its then
equivalent); provided, however, that the distribution of the
Securities in connection with the liquidation of the Trust by the
Company shall not in and of itself constitute a Regulatory
Capital Event unless such liquidation shall have occurred in
connection with a Tax Event or an Investment Company Event.
"Remaining Life" has the meaning specified in
Section 1201.
"Responsible Officer", when used with respect to the
Trustee, means any Vice President, any Assistant Secretary, any
Assistant Treasurer, any trust officer or assistant trust
officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Global Security" means any Global Security
or Securities evidencing Securities that are to be traded
pursuant to Rule 144A.
"Restricted Period" shall have the meaning specified
in Section 315.
"Restricted Security" has the meaning assigned to such
term in Rule 144(a)(3) of the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning specified in the Recitals
to this instrument.
"Securities Act" means the Securities Act of 1933,
as amended.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Event" means either an Investment Company
Event, a Regulatory Capital Event or a Tax Event.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any
Security or any installment of interest thereon, means the date
specified in such Security as the date on which the principal,
together with any accrued and unpaid interest, of such Security
or such installment of interest is due and payable.
<PAGE> 10
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized
national tax practice, to the effect that, as a result of any
amendment to, change in or announced proposed change in the laws
(or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is adopted or which pronouncement or decision
is announced on or after the [pricing date], there is more than
an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on
the Securities, (ii) interest payable by the Company on the
Securities is not, or within 90 days of the date of such opinion,
will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
"Treasury Rate" means (i) the yield, under the heading
which represents the average for the immediately prior week,
appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury
Constant Maturities", for the maturity corresponding to the
Remaining Life (if no maturity is within three months before or
after the Remaining Life, yields for the two published maturities
most closely corresponding to the Remaining Life shall be
determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding
to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date. The Treasury Rate shall be calculated on the
third business day preceding the Redemption Date.
"Trust" means GreenPoint Capital Trust I, a statutory
business trust declared and established pursuant to the Delaware
Business Trust Act by the Declaration.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
<PAGE> 11
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument
was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified
in Section 404.
"Vice President", when used with respect to the
Company or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after
the title "vice president."
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or given an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion
is based are erroneous. Any such certificate or opinion of
counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
<PAGE> 12
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee at the address
specified in Section 105 and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any
request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or
vote shall be the 15th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the
case may be.
With regard to any record date, only the Holders on
such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
<PAGE> 13
SECTION 105. Notices, Etc. to Trustee and the Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Trustee
Administration; or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at
the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be
made by telecopier or overnight air courier guaranteeing next day
delivery.
SECTION 107. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required
under such Act to be a part of and govern this Indenture, the
provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as to
modified or so be excluded, as the case may be.
<PAGE> 14
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of
Indebtedness, the holders of Capital Securities (to the extent
provided herein) and the Holders of Securities, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. THIS
INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT
THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE
EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal
of the Securities need not be made on such date, but may be made
on the next succeeding Business Day (except that, if such
Business Day is in the next succeeding calendar year, such
Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, shall be the immediately preceding Business Day)
with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided that
no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
<PAGE> 15
ARTICLE TWO
SECURITY FORMS
The Junior Subordinated Securities in definitive form
and the New Junior Subordinated Securities in definitive form
shall be in the form attached hereto as Exhibit A; provided, that
the New Junior Subordinated Securities shall not contain any of
the provisions following the Trustee's authentication.
If the Securities are distributed to the holders of
Capital Securities and Common Securities, the record holder
(including any Depositary) of any Capital Securities or Common
Securities shall be issued Securities in definitive, fully
registered form without interest coupons, substantially in the
form of Exhibit A hereto, with the legends in substantially the
form of the legends existing on the security representing the
Capital Securities or Common Securities to be exchanged (with
such changes thereto as the officers executing such Securities
determine to be necessary or appropriate, as evidenced by their
execution of the Securities) and such other legends as may be
applicable thereto (including any legend required by Section 313
or Section 314 hereof), duly executed by the Company and
authenticated by the Trustee or the authenticating agent as
provided herein, which Securities, if to be held in global form
by any Depositary, may be deposited on behalf of the holders of
the Securities represented thereby with the Trustee, as custodian
for the Depositary, and registered in the name of a nominee of
the Depositary.
Any Global Security shall represent such of the
outstanding Securities as shall be specified therein and shall
provide that it shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon and
that the aggregate amount of outstanding Securities represented
thereby may from time to time be increased or reduced to reflect
transfers or exchanges permitted hereby. Any endorsement of a
Global Security to reflect the amount of any increase or decrease
in the amount of outstanding Securities represented thereby shall
be made by the Trustee or the Custodian, at the direction of the
Trustee, in such manner and upon instructions given by the holder
of such Securities in accordance with the Indenture. Payment of
principal of and interest and premium, if any, on any Global
Security shall be made to the holder of such Global Security.
The Securities shall have such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
The definitive Securities shall be printed,
lithographed or engraved or produced by any combination of these
or other methods, all as determined by the officers executing
such Securities, as evidenced by their execution of such
Securities.
<PAGE> 16
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities' Stated Maturity shall be June 1, 2027.
The Securities shall bear interest at the rate of
9.10% per annum, from June 1, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable semi-annually (subject
to deferral as set forth herein), in arrears, on June 1 and
December 1 of each year, commencing December 1, 1997, until the
principal thereof is paid or made available for payment. Interest
will compound semi-annually and will accrue at the rate of 9.10%
per annum, to the extent permitted by
applicable law, on any interest installment in arrears for more
than one semi-annual period or during an extension of an interest
payment period as set forth below in this Section 301. In the
event that any date on which interest is payable on the
Securities is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay).
The Company shall have the right, at any time during
the term of the Securities, from time to time, to defer payment
of interest on such Security for up to 10 consecutive semi-annual
periods (an "Extension Period") provided that no Extension Period
may extend past the Maturity of the Security. There may be
multiple Extension Periods of varying lengths during the term of
the Securities. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together
with interest thereon, compounded semi-annually at the rate
specified on this Security to the extent permitted by applicable
law. During any such Extension Period, the Company may not, and
may not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of
the Company's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu
with or junior in interest to the Securities or make any
guarantee payments with respect to any guarantee by the Company
of the debt securities of any Subsidiary of the Company if such
guarantee ranks pari passu or junior in interest to the
Securities (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, or in connection
with a dividend reinvestment or stockholder stock purchase plan,
(b) as a result of an exchange or conversion of any class or
series of the Company's capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the
Company's indebtedness for any class or series
<PAGE> 17
of the Company's capital stock, (c) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder's rights plans, or the issuance
of rights, stock or other property under any stockholder's rights
plan, or the redemption or repurchase of rights pursuant thereto,
or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid (or ranks pari
passu with or junior to such stock). Prior to the termination of
any such Extension Period, the Company may further extend the
interest payment period, provided that no Extension Period may
exceed 10 consecutive semi-annual periods or extend beyond the
Stated Maturity of the Securities. Upon the termination of any
such Extension Period and the payment of all amounts then due on
any Interest Payment Date, the Company may elect to begin a new
Extension Period subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at
the end thereof. The Company shall give the Property Trustee, the
Regular Trustees and the Debenture Trustee written notice of its
election of such Extension Period at least one Business Day prior
to the record date for the related interest payment.
The Trustee shall promptly give notice of the
Company's selection of such Extension Period to the Holders of
the Capital Securities.
The principal of and interest on the Securities shall
be payable at the office or agency of the Paying Agent in the
United States maintained for such purpose and at any other office
or agency maintained by the Company for such purpose in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be
designated by the Person entitled thereto, prior to the relevant
record date, as specified in the Security Register.
The Securities shall be subordinated in right of
payment to Indebtedness as provided in Article Eleven.
The Securities shall be redeemable as provided in
Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered
form, without coupons, and only in denominations of $1,000 and
any integral multiple thereof.
<PAGE> 18
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Vice Presidents. The signature
of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee
in accordance with such Company Order shall authenticate and make
available for delivery such Securities as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary
Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at any
office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal
amount of definitive Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as
definitive Securities.
<PAGE> 19
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the principal
office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 1002 being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any
Security at an office or agency of the Company designated
pursuant to Section 1002 for such purpose, the Company shall
execute, and the Trustee shall authenticate and make available
for delivery, in the name of the designated transferee or
transferees, one or more new Securities of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be
exchanged for other Securities of any authorized denominations
and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid obligations
of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1208 not involving any
transfer.
If the Securities are to be redeemed in part, the
Company shall not be required (A) to issue, register the transfer
of or exchange any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption
under Section 1204 and ending at the close of business on the day
of such mailing, or (B) to register the transfer of or exchange any
<PAGE> 20
Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
So long as the Securities are eligible for book-entry
settlement with the Depositary, or unless otherwise required by
law, all Securities to be traded on the PORTAL Market shall be
represented by the Restricted Global Security registered in the
name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in
any Global Security, which does not involve the issuance of a
definitive Security or the transfer of interests to another
Global Security, shall be effected through the Depositary (but
not the Trustee or the Custodian) in accordance with this
Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor. Neither
the Trustee nor the Custodian (in such respective capacities)
will have any responsibility for the transfer and exchange of
beneficial interests in such Global Security that does not
involve the issuance of a definitive Security or the transfer of
interests to another Global Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor
a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, subject to the preceding
paragraph, pay such Security instead of issuing a new Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time
<PAGE> 21
enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security
and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
<PAGE> 22
Securities may be listed, and if so listed, upon such notice as
may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee. Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue which, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee shall treat the Person in whose
name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and (subject
to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and
shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of as directed by a Company
Order, provided, however, that the Trustee may but shall not be
required to destroy such Securities.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of
interest payable for any period shorter than a full semi-annual
period for which interest is computed will be computed on the
basis of actual number of days elapsed in such 180 day
semi-annual period.
SECTION 311. Right of Set-off.
Notwithstanding anything to the contrary in the
Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make thereunder to the extent
the Company has theretofore made, or is concurrently on the date
of such payment making, a related payment under the Guarantee.
<PAGE> 23
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers. The Company shall promptly notify the Trustee of
any change in the "CUSIP" numbers.
SECTION 313. Global Securities.
If the Securities are distributed to the holders of
Capital Securities, such Securities distributed in respect of
Capital Securities that are held in global form by a Depositary
will initially be issued as a Global Security, unless such
transfer cannot be effected through book-entry settlement. If the
Company shall establish that the Securities are to be issued in
the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 303 and
the Company Order, authenticate and deliver one or more Global
Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the
Securities to be issued in the form of Global Securities and not
yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee
of such Depositary, and (iii) shall be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instructions.
Global Securities shall bear a legend substantially to the
following effect:
"This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee of a Depositary.
Notwithstanding the provisions of Section 305, unless and until
it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of
the Securities may not be transferred in the manner provided in
Section 305 except as a whole by the Depositary to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. Every Security delivered
upon registration or transfer of, or in exchange for, or in lieu
of, this Global Security shall be a Global Security subject to
the foregoing, except in the limited circumstances described
above. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration
of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is to be made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein."
<PAGE> 24
Definitive Securities issued in exchange for all or a
part of a Global Security pursuant to this Section 313 shall be
registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee.
Upon execution and authentication, the Trustee shall make
available for delivery such definitive Securities to the persons
in whose names such definitive Securities are so registered.
At such time as all interests in Global Securities
have been redeemed, repurchased or canceled, such Global
Securities shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in Global Securities
is exchanged for definitive Securities, redeemed, canceled or
transferred to a transferee who receives definitive Securities
therefor or any definitive Security is exchanged or transferred
for part of Global Securities, the principal amount of such
Global Securities shall, in accordance with the standing
procedures and instructions existing between the Depositary and
the Custodian, be reduced or increased, as the case may be, and
an endorsement shall be made on such Global Securities by the
Trustee or the Custodian, at the direction of the Trustee, to
reflect such reduction or increase.
The Company and the Trustee may for all purposes,
including the making of payments due on the Securities, deal with
the Depositary as the authorized representative of the Holders
for the purposes of exercising the rights of Holders hereunder.
The rights of the owner of any beneficial interest in a Global
Security shall be limited to those established by law and
agreements between such owners and depository participants or
Euroclear and Cedel; provided, that no such agreement shall give
any rights to any person against the Company or the Trustee
without the written consent of the parties so affected. Multiple
requests and directions from and votes of the Depositary as
holder of Securities in global form with respect to any
particular matter shall not be deemed inconsistent to the extent
they do not represent an amount of Securities in excess of those
held in the name of the Depositary or its nominee.
If at any time the Depositary for any Securities
represented by one or more Global Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such
Securities or if at any time the Depositary for such Securities
shall no longer be eligible under this Section 313, the Company shall
appoint a successor Depositary with respect to such Securities.
If a successor Depositary for such Securities is not appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election
that such Securities be represented by one or more Global
Securities shall no longer be effective and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities, will
authenticate and make available for delivery Securities in
definitive registered form, in any authorized denominations, in
an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Securities in
exchange for such Global Security or Securities.
<PAGE> 25
The Company may at any time and in its sole discretion
determine that the Securities issued in the form of one or more
Global Securities shall no longer be represented by a Global
Security or Securities. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities, shall
authenticate and make available for delivery, Securities in
definitive registered form, in any authorized denominations, in
an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Securities,
in exchange for such Global Security or Securities.
Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in Section 314(a)), Global
Securities may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in Global Security may
be transferred or exchanged for definitive Securities and
definitive Securities may be transferred or exchange for Global
Securities in accordance with rules of the Depositary and the
provisions of Section 315.
Any Security in global form may be endorsed with or
have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Indenture as
may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the
Securities to be tradeable on the PORTAL Market or as may be
required for the Securities to be tradeable on any other market
developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation
thereunder or with Regulation S or with the rules and regulations
of any securities exchange upon which the Securities may be
listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions
to which any particular Securities are subject.
SECTION 314. Restrictive Legend.
(a) Each Global Security and definitive Security that
constitutes a Restricted Security shall bear the following legend
(the "Private Placement Legend") on the face thereof until two
years after the later of the date of original issue and the last
which the Company or any Affiliate of the Company was the owner
of such Capital Securities (or any predecessor thereto) (the
"Resale Restriction Termination Date"), unless otherwise agreed
by the Company and the Holder thereof:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.
<PAGE> 26
EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS,
ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL
NOT OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR
TO THE LATER OF THE DATE WHICH IS TWO YEARS AFTER THE DATE
OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
SUCH RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D)
OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE
JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS
SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II)
ABOVE, ANY OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE
FOREGOING CLAUSES (II)(D) AND (E) IS SUBJECT TO THE RIGHT
OF THE ISSUER OF THIS SECURITY AND THE PROPERTY TRUSTEE FOR
SUCH SECURITIES TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO
THEM IN FORM AND SUBSTANCE."
Any Security (or security issued in exchange or
substitution therefor) as to which such restrictions on transfer
shall have expired in accordance with their terms may, upon
satisfaction of the requirements of Section 314(b) and surrender
of such Security for exchange to the Security Registrar in accordance
with the provisions of this Section 314, be exchanged for a new
Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by this
Section 314(a).
(b) Upon any sale or transfer of any Restricted Security
(including any interest in a Global Security) (i) that is effected
pursuant to an effective registration statement under the Securities
Act or (ii) in connection with which the Trustee receives certifi-
cates and other information (including an opinion of counsel, if
requested) reasonably acceptable to the Company and the Trustee to
the effect that such security will no longer be subject to the
<PAGE> 27
resale restrictions under federal and state securities laws,
then (A) in the case of a Restricted Security in definitive form,
the Security Registrar or co-Registrar shall permit the holder
thereof to exchange such Restricted Security for a Security that
does not bear the legend set forth in Section 314(a), and shall
rescind any such restrictions on transfer and (B) in the case of
Restricted Securities represented by a Global Security, such
Security shall no longer be subject to the restrictions contained
in the legend set forth in Section 314(a) (but still subject to
the other provisions hereof). In addition, any Security (or
Security issued in exchange or substitution therefor) as to which
the restrictions on transfer described in the legend set forth in
Section 314(a) have expired by their terms, may, upon surrender
thereof (in accordance with the terms of this Indenture) together
with such certifications and other information (including an
Opinion of Counsel having substantial experience in practice
under the Securities Act and otherwise reasonably acceptable to
the Company, addressed to the Company and the Trustee and in a
form acceptable to the Company, to the effect that the transfer
of such Restricted Security has been made in compliance with Rule
144 or such successor provision) acceptable to the Company and
the Trustee as either of them may reasonably require, be
exchanged for a new Security or Securities of like tenor and
aggregate principal amount, which shall not bear the restrictive
legends set forth in Section 314(a).
SECTION 315. Special Transfer Provisions.
At any time at the request of the beneficial holder of
an interest in a Security in global form, such beneficial holder
shall be entitled to obtain a definitive Security upon written
request to the Trustee in accordance with the standing
instructions and procedures existing between the Depositary and
the Trustee for the issuance thereof. Upon receipt of any such
request, the Trustee will cause the aggregate principal amount of
the Security in global form to be reduced and, following such
reduction, the Company will execute and the Trustee will
authenticate and make available for delivery to such beneficial
holder (or its nominee) a Security or Securities in the
appropriate aggregate principal amount in the name of such
beneficial holder (or its nominee) and bearing such restrictive
legends as may be required by this Indenture.
Any transfer of a beneficial interest in a Security in global
form which cannot be effected through book-entry settlement must
be effected by the delivery to the transferee (or its nominee) of
a definitive Security or Securities registered in the name of the
transferee (or its nominee) on the books maintained by the
Trustee. With respect to any such transfer, the Trustee will
cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the
aggregate principal amount of the Security in global form to be
reduced and, following such reduction, the Company will execute
and the Trustee will authenticate and make available for delivery to the
transferee (or such transferee's nominee, as the case may be), a
Security or Securities in the appropriate aggregate principal
amount in the name of such transferee (or its nominee) and
bearing such restrictive legends as may be required by this
Indenture. In connection with any such transfer, the Trustee may
request such representations and agreements relating to the
restrictions on transfer of such Security or Securities from such
transferee (or such transferee's nominee) as the Trustee may
reasonably require.
<PAGE> 28
So long as the Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any
transfer of a definitive Security to a QIB in accordance with
Rule 144A, unless otherwise requested by the transferor, and upon
receipt of the definitive Security or Securities being so
transferred, together with a certification from the transferor
that the transferor reasonably believes that the transferee is a
QIB (or other evidence satisfactory to the Trustee), the Trustee
shall make an endorsement on the Restricted Global Security to
reflect an increase in the aggregate principal amount of the
Securities represented by the Restricted Global Security, the
Trustee shall cancel such definitive Security or Securities and
cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the
aggregate principal amount of Securities represented by the
Restricted Global Security to be increased accordingly.
So long as the Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any
transfer of a definitive Security in accordance with Regulation
S, if requested by the transferor, and upon receipt of the
definitive Security or Securities being so transferred, together
with a certification from the transferor that the transfer was
made in accordance with Rule 903 or 904 of Regulation S or Rule
144 under the Securities Act (or other evidence satisfactory to
the Trustee), the Trustee shall make or direct the Custodian to
make, an endorsement on the Regulation S Global Security to
reflect an increase in the aggregate principal amount of the
Securities represented by the Regulation S Global Security, the
Trustee shall cancel such definitive Security or Securities and
cause, or direct the Custodian to cause, in accordance with the
standing instructions and procedures existing between the
Depositary and the Custodian, the aggregate principal amount of
Securities represented by the Regulation S Global Security to be
increased accordingly.
If a holder of a beneficial interest in the Restricted
Global Security wishes at any time to exchange its interest in
the Restricted Global Security for an interest in the Regulation
S Global Security, or to transfer its interest in the Restricted
Global Security to a person who wishes to take delivery thereof
in the form of an interest in the Regulation S Global Security,
such holder may, subject to the rules and procedures of the
Depositary and to the requirements set forth in the following
sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest
in the Regulation S Global Security. Upon receipt by the Trustee,
as transfer agent of (1) instructions given in accordance with
the Depositary's procedures from or on behalf of a holder of a
beneficial interest in the Restricted Global Security, directing
the Trustee (via DWAC), as transfer agent, to credit or cause to
be credited a beneficial interest in the Regulation S Global
Security in an amount equal to the beneficial interest in the
Restricted Global Security to be exchanged or transferred, (2) a
written order given in accordance with the Depositary's
procedures containing information regarding the Euroclear or
Cedel account to be credited with such increase and the name of
such account, and (3) a certificate given by the holder of such
beneficial interest stating that the exchange or transfer of such
interest has been made pursuant to and in accordance with Rule
903 or Rule 904 of Regulation S or Rule 144 under the Securities
Act (or other evidence satisfactory to the Trustee), the Trustee,
as transfer agent, shall promptly deliver appropriate
instructions to the Depositary (via DWAC), its nominee, or
the custodian for the Depositary, as the case may be, to
reduce or reflect on its records a reduction of the Restricted
Global Security by the aggregate principal amount of
<PAGE> 29
the beneficial interest in such Restricted Global Security
to be so exchanged or transferred from the relevant participant,
and the Trustee, as transfer agent, shall promptly deliver
appropriate instructions (via DWAC) to the Depositary, its
nominee, or the custodian for the Depositary, as the case may be,
concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of such Regulation S
Global Security by the aggregate principal amount of the
beneficial interest in such Restricted Global Security to be so
exchanged or transferred, and to credit or cause to be credited
to the account of the person specified in such instructions (who
may be Morgan Guaranty Trust Company of New York, Brussels
office, as operator of Euroclear or Cedel or another agent member
of Euroclear or Cedel, or both, as the case may be, acting for
and on behalf of them) a beneficial interest in such Regulation S
Global Security equal to the reduction in the principal amount of
such Restricted Global Security.
If a holder of a beneficial interest in the Regulation
S Global Security wishes at any time to exchange its interest in
the Regulation S Global Security for an interest in the
Restricted Global Security, or to transfer its interest in the
Regulation S Global Security to a person who wishes to take
delivery thereof in the form of an interest in the Restricted
Global Security, such holder may, subject to the rules and
procedures of Euroclear or Cedel and the Depositary, as the case
may be, and to the requirements set forth in the following
sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest
in such Restricted Global Security. Upon receipt by the Trustee,
as transfer agent of (l) instructions given in accordance with
the procedures of Euroclear or Cedel and the Depositary, as the
case may be, from or on behalf of a beneficial owner of an
interest in the Regulation S Global Security directing the
Trustee, as transfer agent, to credit or cause to be credited a
beneficial interest in the Restricted Global Security in an
amount equal to the beneficial interest in the Regulation S
Global Security to be exchanged or transferred, (2) a written
order given in accordance with the procedures of Euroclear or
Cedel and the Depositary, as the case may be, containing
information regarding the account with the Depositary to be
credited with such increase and the name of such account, and (3)
prior to the expiration of the Restricted Period, a certificate
given by the holder of such beneficial interest and stating that
the person transferring such interest in such Regulation S Global
Security reasonably believes that the person acquiring such
interest in the Restricted Global Security is a QIB and is
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of
any state of the United States or any other jurisdiction (or
other evidence satisfactory to the Trustee), the Trustee, as
transfer agent, shall promptly deliver (via DWAC) appropriate
instructions to the Depositary, its nominee, or the custodian for
the Depositary, as the case may be, to reduce or reflect on its
records a reduction of the Regulation S Global Security by the
aggregate principal amount of the beneficial interest in such
Regulation S Global Security to be exchanged or transferred, and
the Trustee, as transfer agent, shall promptly deliver (via
DWAC) appropriate instructions to the Depositary, its nominee, or
the custodian for the Depositary, as the case may be,
concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of the Restricted
Global Security by the aggregate principal amount of the
beneficial interest in the Regulation S Global Security to be so
exchanged or transferred, and to credit or cause to be credited
to the account of the person specified in such instructions a
beneficial interest in the Restricted Global Security
<PAGE> 30
equal to the reduction in the principal amount of the Regulation
S Global Security. After the expiration of the Restricted Period
(as defined below), the certification requirement set forth in
clause (3) of the second sentence of the above paragraph will no
longer apply to such exchanges and transfers.
If a holder of a definitive Security wishes at any
time to exchange its Security for a beneficial interest in any
Global Security (or vice versa), or to transfer its definitive
Security to a person who wishes to take delivery thereof in the
form of a beneficial interest in a Global Security (or vice
versa), such Securities and beneficial interests may be exchanged
or transferred for one another only in accordance with such
procedures as are substantially consistent with the provisions of
the two preceding paragraphs (including the certification
requirements intended to ensure that such exchanges or transfers
comply with Rule 144, Rule 144A or Regulation S, as the case may
be) and as may be from time to time adopted by the Company and
the Trustee.
Any beneficial interest in one of the Global
Securities that is transferred to a person who takes delivery in
the form of an interest in the other Global Security will, upon
transfer, cease to be an interest in such Global Security and
become an interest in the other Global Security and, accordingly,
will thereafter be subject to all transfer restrictions and other
procedures applicable to beneficial interests in such other
Global Security for as long as it remains such an interest.
Prior to or on the 40th day after the later of the
commencement of the offering of the Capital Securities and the
Closing Date (the "Restricted Period"), beneficial interests in a
Regulation S Global Security may only be held through Morgan
Guaranty Trust Company of New York, Brussels Office, as operator
of Euroclear or Cedel or another agent member of Euroclear and
Cedel acting for and on behalf of them, unless delivery is made
through the Restricted Global Security in accordance with the
certification requirements hereof. During the Restricted Period,
interests in the Regulation S Global Security, if any, may be
exchanged for interests in the Restricted Global Security or for
definitive Securities only in accordance with the certification
requirements described above.
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect
(except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the
Trustee, on written demand of and at the expense of the Company,
shall execute instruments supplied by the Company acknowledging
satisfaction and discharge of this Indenture, when (1) either (A)
all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore
<PAGE> 31
been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or (B) all such
Securities not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, or (ii) will become
due and payable at their Maturity within one year, or (iii) if
redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in
the name, and of the expense, of the Company and the Company, in
the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as funds in trust for the purpose
on amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Maturity or Redemption Date, as the case may
be; (2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and (3) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Legal Defeasance.
In addition to discharge of this Indenture pursuant to
Section 401, in the case of any Securities with respect to which
the exact amount described in subparagraph (a) of Section 404 can
be determined at the time of making the deposit referred to in
such subparagraph (a), the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Securities as
provided in this Section on and after the date the conditions set
forth in Section 404 are satisfied, and the provisions of this
Indenture with respect to the Securities shall no longer be in
effect (except as to (i) rights of registration of transfer and
exchange of Securities, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) maintenance of a
Paying Agent, (iv) rights of Holders of Securities to receive,
solely from the trust fund described in subparagraph (a) of
Section 404, payments of principal thereof and interest, if any,
thereon upon the original stated due dates therefor (but not upon
acceleration), (v) the rights, obligations, duties and immunities
of the Trustee hereunder, (vi) this Section 402 and (vii) the
rights of the Holders of Securities as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to
all or any of them) (hereinafter called "Legal Defeasance"), and
the Trustee, at the cost and expense of the Company, shall
execute proper instruments acknowledging the same.
<PAGE> 32
SECTION 403. Covenant Defeasance.
In the case of any Securities with respect to which
the exact amount described in subparagraph (a) of Section 404 can
be determined at the time of making the deposit referred to in
such subparagraph (a), (x) the Company shall be released from its
obligations under any covenants specified in or pursuant to this
Indenture (except as to (i) rights of registration of transfer
and exchange of Securities, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) maintenance
of a Paying Agent, (iv) rights of Holders of Securities to
receive, from the Company pursuant to Section 1001, payments of
principal thereof and interest, if any, thereon upon the original
stated due dates therefor (but not upon acceleration), (v) the
rights, obligations, duties and immunities of the Trustee
hereunder and (vi) the rights of the Holders of Securities as
beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and (y) the
occurrence of any event specified in Section 501(3) (with respect
to any of the covenants specified in or pursuant to this
Indenture) shall be deemed not to be or result in an Event of
Default, in each case with respect to the Outstanding Securities
as provided in this Section on and after the date the conditions
set forth in Section 404 are satisfied (hereinafter called
"Covenant Defeasance"), and the Trustee, at the cost and expense
of the Company, shall execute proper instruments acknowledging
the same. For this purpose, such Covenant Defeasance means that
the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any
such covenant (to the extent so specified in the case of Section
501(3)), whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein
or in any other document, but the remainder of this Indenture and
the Securities shall be unaffected thereby.
SECTION 404. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application
of either Section 402 or 403 to the Outstanding Securities:
(a) with reference to Section 402 or 403, the Company
has irrevocably deposited or caused to be irrevocably deposited
with the Trustee as funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of Securities (i) cash in an amount, (ii) direct obligations of
the United States of America, backed by its full faith and credit
("U.S. Government Obligations"), maturing as to principal and
interest, if any, at such times and in such amounts as will
ensure the availability of cash, (iii) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, or (iv) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the principal of and interest, if
any, on all Securities on each date that such principal or
interest, if any, is due and payable;
<PAGE> 33
(b) in the case of Legal Defeasance under Section 402,
the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has
received from, or there has been published by, the Internal
Revenue Service a ruling or (y), since the date hereof, there has
been a change in the applicable United States federal income tax
law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will
not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and Legal Defeasance and
will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case
if such deposit and Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance under Section
403, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that, and such opinion shall confirm that,
the Holders of the Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit
and Covenant Defeasance and will be subject to federal income tax
on the same amount in the same manner and at the same times as
would have been the case if such deposit and Covenant Defeasance
had not occurred;
(d) such Legal Defeasance or Covenant Defeasance will
not result in a breach or violation of, or constitute a default
under, any agreement or instrument to which the Company is a
party or by which it is bound; and
(e) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent contemplated by this provision have
been complied with.
SECTION 405. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations deposited
with the Trustee pursuant to Section 401 shall be held in trust
and such money and all money from such U.S. Government
Obligations shall be applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money and U.S. Government
Obligations has been deposited with the Trustee.
SECTION 406. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
Section 404 or the principal or interest received in respect of
such obligations other than any such tax, fee or other charge
that by law is for the account of the Holders of Outstanding
Securities.
<PAGE> 34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein, means any one
of the following events that has occurred and is continuing
(whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Eleven or be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) failure for 30 days to pay any interest on the
Securities when due (subject to the deferral of any due date in
the case of an Extension Period); or
(2) failure to pay any principal on the Securities when
due, whether at Maturity, upon redemption, by declaration of
acceleration or otherwise;
(3) failure to observe or perform in any material
respect any other covenant herein that continues 90 days after
written notice to the Company from the Trustee or the holders of
at least 25% in aggregate principal amount of the Outstanding
Securities; or
(4) entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable federal or
state law, at appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of substantially all of the property of the Company,
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 90
consecutive days; or
(5) (A) the commencement by the Company of a voluntary
case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or (B) the consent by the Company or to the entry of a
decree or order for relief in respect of itself in an involuntary
case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case or
proceeding against the Company, or (C) the filing by the Company
of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or (D) the
consent by the Company to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of all or substantially all of the
property of the Company, or (E) the making by the Company of an
assignment for the benefit of creditors.
<PAGE> 35
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then
and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding
Securities shall have the right to declare the principal of and
the interest on all the Securities and any other amounts payable
hereunder to be due and payable immediately, provided, however,
that if upon an Event of Default, the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding
Securities fail to declare the payment of all amounts on the
Securities to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of Capital Securities
then outstanding shall have such right, by a notice in writing to
the Company (and to the Trustee if given by Holders or the
holders of Capital Securities) and upon any such declaration such
principal and all accrued interest shall become immediately due
and payable.
At any time after such a declaration of acceleration
has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in aggregate
principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such
declaration and its consequences if (1) the Company has paid or
deposited with the Trustee a sum sufficient to pay (A) all
overdue interest on all Securities, (B) the principal of (and
premium, if any, on) any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities, (C) to the extent
that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities, and (D) all sums
paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and (2) all Events of Default,
other than the non-payment of the principal of Securities which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513. Should the
Holders of such Securities fail to annul such declaration and
waive such default, the holders of a majority in aggregate
liquidation amount of the Capital Securities then outstanding
shall have such right. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and interest,
and, to the extent that payment thereof shall be legally
enforceable, interest on any overdue principal and on any overdue
interest, at the rate borne by the Securities, and, in
<PAGE> 36
addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee may File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other similar judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607. No provision of this Indenture shall
be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 505. Trustee may Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trust
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of any express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment
has been recovered.
<PAGE> 37
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the
Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of
principal, upon presentation of the Securities and the notation
thereon of the payment, if only partially paid, and upon
surrender thereof, if fully paid;
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: To the payment of the amounts then due and
unpaid for principal of and interest on the Securities in respect
of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable as such Securities for
principal and interest, respectively.
THIRD: To the Company, if any balance shall remain.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period
by the Holders of a majority in principal amount of the
Outstanding Securities; it being understood and intended that no
one or more Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
<PAGE> 38
SECTION 508. Unconditional Right of Holders to Receive Principal
and Interest; Capital Security Holders' Rights.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and (subject to Section 307) interest on such Security on the
Stated Maturity expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
If an Event of Default constituting the failure to pay
interest or principal on the Securities on the date such interest
or principal is otherwise payable has occurred and is continuing,
then a holder of Capital Securities may directly institute a
proceeding for enforcement of payment to such holder directly of
the principal of or interest on the Securities having a principal
amount equal to the aggregate liquidation amount of the Capital
Securities as such holder on or after the respective due date
specified in the Securities. The Company may not amend this
Section without the prior written consent of the holders of all
of the Capital Securities. Notwithstanding any payment made to
such holder of Capital Securities by the Company in connection
with such a Direct Action, the Company shall remain obligated to
pay the principal of or interest on the Securities held by the
Trust or the Property Trustee and the Company shall be subrogated
to the rights of the holder of such Capital Securities with
respect to payments on the Capital Securities to the extent of
any payments made by the Company to such holder in any Direct
Action. A holder of Capital Securities will not be able to
exercise directly any other remedy available to the Holders of
the Securities.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
<PAGE> 39
SECTION 511. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any Holder
of any Security to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 902 and 1008 hereof, the Holders
of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of or interest on
any Security (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited
with the Trustee); or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected;
provided, however, that such waiver or modification to such
waiver shall not be effective until the holders of a majority in
liquidation preference of Capital Securities shall have consented
to such waiver or modification to such waiver; provided further,
that if the consent of the Holder of each of the Outstanding
Securities is required, such waiver shall not be effective until
each holder of the Capital Securities shall have consented to
such waiver.
Upon any such waiver, such default shall cease to exist,
effective as of the date specified in such waiver (and effective
retroactively to the date of default, if so specified) and any Event
of Default arising therefrom shall be deemed to have been cured,
<PAGE> 40
for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to
pay the costs including legal fees and expenses of such suit, and
any assess costs against any such party litigant, in the manner
and to the extent provided in the Trust Indenture Act; provided,
that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or
to make such an assessment in any suit instituted by the Company
or the Trustee or in any suit for the enforcement of the right to
receive the principal of and interest on any Security.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall
be as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
<PAGE> 41
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any
default hereunder as and to the extent provided by the Trust
Indenture Act; provided, however, that except in the case of a
default in the payment of the principal of or interest on any
Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of
Securities; provided, further, that in the case of any default of
the character specified in Section 501(3), no such notice to
Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of
time or both would become, an Event of Default. For purposes of
this Section, the Trustee shall not be deemed to have knowledge
of a default unless the Trustee has actual knowledge of such
default or has received written notice of such default in the
manner contemplated by Section 105.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice
and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
<PAGE> 42
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(h) any application by the Trustee for written
instructions from the Company may, at the option of the Trustee,
set forth in writing any action proposed to be taken or omitted
by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Company for any
action taken by, or omission of, the Trustee in accordance with a
proposal included in such application on or after the date
specified in such application (which date shall not be less than
five Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an
omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken
or omitted.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities, the Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. Trustee and Other Agents may Hold Securities.
The Trustee, any Paying Agent, any Security Registrar,
or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar, or such other agent.
Money held by the Trustee in trust hereunder shall not be
invested by the Trustee pending distribution thereof to the
holders of the Securities.
<PAGE> 43
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 607. Compensation; Reimbursement; and Indemnity.
The Company, as issuer of the Securities, agrees
(1) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to
time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense, including taxes
(other than taxes based on the income, revenues or gross receipts
of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust or the trusts hereunder, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for
expenses, disbursements and advances and to indemnify and hold
harmless the Trustee shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of
this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a lien prior
to the Securities upon all property and lands held or collected
by the Trustee as such, except funds held in trust for the
payment of principal of (and premiums, if any, on) or interest on
particular Securities.
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section
501(4) or Section 501(5), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the
termination of this Indenture.
<PAGE> 44
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000 and has its Corporate Trust
Office in New York, New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition at the expense of
the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of
the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company. If an
instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may petition at the
expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
<PAGE> 45
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the
Company by a Board Resolution may remove the Trustee, or (ii)
subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may,
on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the Retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a
successor Trustee to all Holders in the manner provided in
Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee;
provided that, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
<PAGE> 46
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not made available for delivery, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and make available for delivery the Securities so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or becomes a creditor
of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Company (or
any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to
the Trustee (a) semi-annually, not later than June 30 and
December 31 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders to
the extent the Company has knowledge thereof as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such, a list of similar
form and content as of a date not more than 15 days prior to the
time such list is furnished, excluding from any such list names
and addresses received by the Trustee in its capacity as Security
Registrar.
<PAGE> 47
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701, and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and duties of
the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders as of May 15 of
each year such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify
the Trustee when the Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13(a) or 15(d) of the Securities
and Exchange Act of 1934 shall be filed with the Trustee within
15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Company's compliance
with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
<PAGE> 48
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person that acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and
existing under the laws of the United States of America or any
State or the District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and
interest (including any additional interest) on all the
Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing;
(3) for so long as Securities registered on the
Securities Register in the name of the Trust (or the Property
Trustee) are outstanding, such consolidation, merger, conveyance,
transfer or lease is permitted under the Declaration and the
Guarantee and does not give rise to any breach or violation of
the Declaration or the Guarantee;
(4) any such lease shall provide that it will remain in
effect so long as any Securities are Outstanding; and
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance, transfer or lease and any
such supplemental indenture complies with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to
Section 601, may rely upon such Officers' Certificate and Opinion
of Counsel as conclusive evidence that such transaction complies
with this Section 801.
SECTION 802. Successor Person Substituted.
Upon any consolidation or merger by the Company with
or into any other Person, or any conveyance, transfer or lease by
the Company of its properties and assets substantially as an
entirety to any Person in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may
<PAGE> 49
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had
been named as the Company herein; and, in the event of any such
conveyance, transfer or lease the Company shall be discharged
from all obligations and covenants under the Indenture and the
Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may
issue either in its own name or in the name of the Company, any
or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall make available for delivery any Securities
which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant
to such provisions. All the Securities so issued shall in all
respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to cure any ambiguity or defect, to correct or
supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this
Indenture, provided that such action pursuant to this clause (3)
shall not adversely affect the interests of the Holders of the
Securities or, so long as any of the Capital Securities shall
remain outstanding, the holders of the Capital Securities; or
<PAGE> 50
(4) to comply with any requirement of the Commission
in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities, by
Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this
Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of, the principal of,
or any installment of interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or
extend the time of payment of interest thereon (except such
extension as is contemplated hereby), or change the place of
payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the
provisions of this Indenture with respect to the subordination of
the Securities in a manner adverse to the Holders,
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
that, so long as any of the Capital Securities remains
outstanding, no such amendment shall be made that adversely
affects the holders of the Capital Securities, and no termination
of this Indenture shall occur, and no waiver of any Event of
Default or compliance with any covenant under this Indenture
shall be effective, without the prior consent of the holders of
at least a majority of the aggregate liquidation preference of
the outstanding Capital Securities unless and until the principal
of and any premium on the Securities and all accrued and unpaid
interest thereon have been paid in full.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
<PAGE> 51
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trust
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and
made available for delivery by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal
of and interest on the Securities in accordance with the terms of
the Securities and this Indenture and comply with all other terms
and conditions and agreements contained herein.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York an
office or agency where Securities may be presented or surrendered
for registration of transfer or exchange, where Securities may be
surrendered for conversion and where notices and demands to or
<PAGE> 52
upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one
or more other offices or agencies in the United States where the
Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in the United States for such purposes. The
Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on, or at the option of the Company, or before
each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
In such case the Company shall not invest the amount so
segregated and held in trust pending the distribution thereof.
Whenever the Company shall have one or more Paying
Agents, it will, on or prior to each due date of the principal of
or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its
action or failure so to act; provided, however, that any such
deposit on a due date shall be initiated prior to 12:00 noon (New
York time) in same-day funds.
The Company will cause each Paying Agent other than
the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will
(i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor
upon the Securities) in the making of any payment in respect of
the Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such
Paying Agent as such.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in the trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
<PAGE> 53
Paying Agent to the Trustee, such Payment Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal or interest that has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION 1004. Statements by Officers as to Default.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending
after the date hereof, an Officers' Certificate, stating whether
or not to the best knowledge of the signers thereof the Company
is in default in the performance and observance of any of the
material terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause
to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material
respect to the Holders and, while any Capital Securities are
outstanding, the holders of the Capital Securities.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful
in the conduct of its business or the business of any Subsidiary
to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or
maintenance of any such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
<PAGE> 54
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
Subsidiary that comprise more than 10% of the assets of the
Company and its Subsidiaries, taken as a whole; provided,
however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified or as contemplated by
Section 301 for Securities, the Company may, with respect to the
Securities, omit in any particular instance to comply with any
term, provision or condition set forth in any covenant provided
pursuant to Section 901(2) for the benefit of the Holders if
before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities shall,
by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision
or condition, but no waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
SECTION 1009. Payment of the Trust's Costs and Expenses.
Since the Trust is being formed solely to facilitate
an investment in the Securities, the Company, as borrower, hereby
covenants to pay all debts and obligations (other than with
respect to the Capital Securities and Common Securities) and all
costs and expenses of the Trust (including, but not limited to,
all costs and expenses relating to the organization of the Trust,
the fees and expenses of the Trustees and all costs and expenses
relating to the operation of the Trust) and to pay any and all
taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed on the Trust by the
United States, or any other taxing authority, so that the net
amounts received and retained by the Trust and the Property
Trustee after paying such expenses will be equal to the amounts
the Trust and the Property Trustee would have received had no
such costs or expenses been incurred by or imposed on the Trust.
The foregoing obligations of the Company are for the benefit of,
and shall be enforceable by, any person to whom any such debts,
obligations, costs, expenses and taxes are owed (each, a
"Creditor") whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the
Company directly against the Company, and the Company irrevocably
waives any right or remedy to require that any such Creditor take
any action against the Trust or any other person before
proceeding against the Company. The Company shall execute such
additional agreements as may be necessary or desirable to give
full effect to the foregoing.
<PAGE> 55
SECTION 1010. Restrictions on Payments and Distributions.
The Company will not, and will not permit any
Subsidiary to, (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make
any payment of principal, interest or premium, if any, on or
repay or repurchase or redeem any debt securities of the Company
that rank pari passu with or junior in interest to the Securities
or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary if such
guarantee ranks pari passu with or junior in interest to the
Securities (other than (a) dividends or distributions in common
stock of the Company, (b) payments under the Guarantee, (c) any
declaration of a dividend in connection with the implementation
of a shareholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, and (d) purchases of common
stock related to the issuance of common stock or rights under any
of the Company's benefit plans) if at such time (x) there shall
have occurred any event of which the Company has actual knowledge
that (I) with the giving of notice or the lapse of time, or both,
would constitute an Event of Default and (II) in respect of which
the Company shall not have taken reasonable steps to cure, (y)
the Company shall be in default with respect to its payment of
any obligations under the Guarantee or (z) the Company shall have
given notice of its election of an Extension Period as provided
herein and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 1101. Securities Subordinate to Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and
agrees, that, to the extent and in the manner hereinafter set
forth in this Article (subject to Article Four), the payment of
the principal of and interest on each and all of the Securities
are hereby expressly made subordinate and subject in right of
payment to the prior payment in full in cash of all Indebtedness.
This Article Eleven shall constitute a continuing
offer to all persons who become holders of, or continue to hold,
Indebtedness, and such provisions are made for the benefit of the
holders of Indebtedness and such holders are made obligees
hereunder and any one or more of them may enforce such
provisions. Holders of Indebtedness need not prove reliance on
the subordination provisions hereof.
SECTION 1102. Default on Indebtedness.
In the event and during the continuation of any
default in the payment of principal, premium, interest or any
other payment due on any Indebtedness, or in the event that any
event of default with respect to any Indebtedness shall have
occurred and be continuing and shall have resulted in such Indebt-
edness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable (unless
<PAGE> 56
and until such event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled) or in the event any judicial
proceeding shall be pending with respect to any such default in
payment or such event of default, then no payment shall be made
by the Company with respect to the principal (including
redemption payments) of, or interest on, the Securities.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such
payment is prohibited by the preceding paragraph of this Section
1102, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Indebtedness
or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such
Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of the
Indebtedness (or their representative or representatives or a
trustee) notify the Trustee within 90 days of such payment of the
amounts then due and owing on the Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to
the holders of Indebtedness.
SECTION 1103. Prior Payment of Indebtedness Upon Acceleration
of Securities.
In the event that the Securities are declared due and
payable before their Stated Maturity, then and in such event the
holders of the Indebtedness outstanding at the time such
Securities so become due and payable shall be entitled to receive
payment in full of all amounts then due on or in respect of such
Indebtedness (including any amounts due upon acceleration), or
provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders
of Indebtedness, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or
character, whether in cash, properties or securities, by the
Company on account of the principal of or interest on the
Securities or on account of the purchase or other acquisition of
Securities by the Company or any Subsidiary; provided, however,
that holders of Indebtedness shall not be entitled to receive
payment of any such amounts to the extent that such holders would
be required by the subordination provisions of such Indebtedness
to pay such amounts over to the obligees on trade accounts
payable or other liabilities arising in the ordinary course of
the Company's business.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such
payment is prohibited by the preceding paragraph of this Section
1103, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Indebtedness
or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such
Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of the
Indebtedness (or their representative or representatives or a
trustee) notify the Trustee within 90 days of such payment of the
amounts then due and owing on the Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to
the holders of Indebtedness.
<PAGE> 57
SECTION 1104. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, and premium,
if any, and interest due or to become due upon all Indebtedness
(including interest after the commencement of any bankruptcy,
insolvency, receivership or other proceedings at the rate
specified in the applicable Indebtedness, whether or not such
interest is an allowable claim in any such proceeding) shall
first be paid in full, or payment thereof provided for in money
in accordance with its terms, before any payment is made on
account of the principal or interest on the Securities; and upon
any such dissolution or winding-up or liquidation or
reorganization any payment by the Company, or distribution of
substantially all of the assets of the Company of any kind or
character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled,
except for the provisions of this Article Eleven, shall be paid
by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Securities or by the
Trustee under this Indenture if received by them or it, directly
to the holders of Indebtedness (pro rata to such holders on the
basis of the respective amounts of Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any
Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay all Indebtedness in
full (including interest after the commencement of any
bankruptcy, insolvency, receivership or other proceedings at the rate
specified in the applicable Indebtedness, whether or not such
interest is in an allowable claim in any such proceeding) or to
provide for such payment in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to
or for the holders of Indebtedness, before any payment or
distribution is made to the Holders of Securities or to the
Trustee or the Property Trustee on behalf of the Holders of
Capital Securities; provided, however, that such holders of
Indebtedness shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the
subordination provisions of such Indebtedness to pay such amounts
over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Company's
business.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee or the Holders of
the Securities before all Indebtedness is paid in full (including
interest after commencement of any bankruptcy, insolvency,
receivership or other proceedings at the rate specified in the
applicable Indebtedness, whether or not such interest is an
allowable claim in any such proceeding), or provision is made for
such payment in money in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of and
shall be paid over or delivered to the holders of Indebtedness or
their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Company,
for application to the payment of all Indebtedness remaining
unpaid to the extent necessary to pay all Indebtedness in
full in money in accordance with its terms, after
<PAGE> 58
giving effect to any concurrent payment or distribution
to or for the holders of such Indebtedness.
Any holder of Indebtedness may file any proof of claim
or similar instrument on behalf of the Trustee and the Holders if
such instrument has not been filed by the date which is 30 days
prior to the date specified for filing thereof.
For purposes of this Article Eleven, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Eleven with respect to the Securities to the payment of all
Indebtedness that may at the time be outstanding, provided,
however, that (i) the Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the
Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation
of the Company with, or merger of the Company into, another
corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article Eight
hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 1104 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Eight hereof. Nothing in Section 1103 or in this Section
1104 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 607.
SECTION 1105. Subrogation.
Subject to the payment in full of all Indebtedness to
the extent provided in Sections 1103 and 1104, the rights of the
Holders of the Securities shall be subrogated to the rights of
the holders of Indebtedness to receive payments or distributions
of cash, property or securities of the Company applicable to the
Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the
holders of the Indebtedness of any cash, property or securities
to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Eleven, shall,
as between the Company, its creditors other than holders of
Indebtedness, and the Holders of the Securities, be deemed to be
a payment by the Company to or on account of the Indebtedness. It
is understood that the provisions of this Article Eleven are and
are intended solely for the purposes of defining the relative
rights of the Holders of the Securities, on the one hand, and the
holders of the Indebtedness on the other hand.
Nothing contained in this Article Eleven or elsewhere
in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the
holders of Indebtedness, and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to
pay to the Holders of the Securities the principal of (and premium,
if any) and interest on the Securities as and when the same shall
<PAGE> 59
become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than
the holders of the Indebtedness, nor shall anything herein or
therein prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article Eleven of the holders of Indebtedness in
respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the
Company referred to in this Article Eleven, the Trustee, subject
to the provisions of Section 601, and the Holders of the
Securities, shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities, for the purposes of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Indebtedness and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Eleven.
SECTION 1106. Trustee to Effectuate Subordination.
Each Holder of a Security by acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article Eleven and appoints
the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 1107. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Eleven. Notwithstanding the provisions
of this Article Eleven or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article Eleven, unless and until a
Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office of the Trustee from
the Company or a holder or holders of Indebtedness or from any
trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 1107 at least
three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium,
if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money
and to apply the same to the purposes for which
<PAGE> 60
they were received, and shall not be affected by any
notice to the contrary that may be received by it within three
Business Days prior to such date.
The Trustee, subject to the provisions of Section 601,
shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of
Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Indebtedness or a
trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder
of Indebtedness to participate in any payment or distribution
pursuant to this Article Eleven, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such Person under this Article Eleven, and if such
evidence is not furnished the Trustee may defer any payment to
such Person pending judicial determination as to the right of
such Person to receive such payment.
SECTION 1108. Rights of the Trustee; Holders of Indebtedness.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Eleven in
respect of any Indebtedness at any time held by it, to the same
extent as any other holder of Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing in this Article Eleven shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 607.
With respect to the holders of Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article Eleven, and no implied covenants or obligations with
respect to the holders of Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Indebtedness and,
subject to the provisions of Section 601, the Trustee shall not
be liable to any holder of Indebtedness if it shall pay over or
deliver to holders of Securities, the Company or any other Person
money or assets to which any holder of Indebtedness shall be
entitled by virtue of this Article Eleven or otherwise.
SECTION 1109. Subordination May Not Be Impaired.
No right of any present or future holder of any
Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
<PAGE> 61
Without in any way limiting the generality of the
foregoing paragraph, the holders of Indebtedness may, at any time
and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to
the holders of Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Indebtedness or otherwise
amend or supplement in any manner Indebtedness or any instrument
evidencing the same or any agreement under which Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing
Indebtedness; (iii) release any Person liable in any manner for
the collection of Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Optional Redemption; Conditions to Optional Redemption.
At any time on or after June 1, 2007, the Company
shall have the right, subject to the last paragraph of this
Section 1201 and to the receipt of any necessary prior approval
of the Federal Reserve, to redeem the Securities, in whole or in
part, from time to time, at the Redemption Prices (expressed as a
percentage of the principal amount of such Securities) set forth
below, plus any accrued but unpaid interest to the Redemption
Date, if redeemed during the twelve-month period beginning on
June 1 of the years indicated below:
Year Percentage
2007 104.4790%
2008 104.0311%
2009 103.5832%
2010 103.1353%
2011 102.6874%
2012 102.2395%
2013 101.7916%
2014 101.3437%
2015 100.8958%
2016 100.4479%
On or after June 1, 2017, the Redemption Price will be
100%, plus accrued and unpaid interest, if any, to the Redemption
Date.
Prior to June 1, 2007, if a Special Event shall occur and
be continuing, the Company shall have the right, subject to the last
paragraph of this Section 1201 and to the receipt of any necessary
prior approval of the Federal Reserve, to redeem, upon not less than
<PAGE> 62
30 days nor more than 60 days notice, the Securities in
whole, but not in part, at a Redemption Price equal to the
greater of (i) 100% of the principal amount of Securities then
outstanding and (ii) as determined by a Quotation Agent, the sum
of the present values of the principal amount and premium payable
with respect to an optional redemption on such Securities on June
1, 2007, together with scheduled payments of interest from the
Redemption Date to June 1, 2007 (the "Remaining Life") discounted
to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of 30-day months) at the Adjusted Treasury Rate,
plus, in each case, accrued interest thereon to the Redemption
Date.
For so long as the Trust is the Holder of all
Securities Outstanding, the proceeds of any redemption described
in this Section 1201 shall be used by the Trust to redeem Common
Securities and Capital Securities in accordance with their terms.
The Company shall not redeem the Securities in part unless all
accrued and unpaid interest has been paid in full on all
Securities outstanding for all semi-annual interest periods
terminating on or prior to the Redemption Date.
SECTION 1202. Applicability of Article.
Redemption of Securities at the election of the
Company, as permitted by Section 1201, shall be made in
accordance with such provision and this Article.
SECTION 1203. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities
pursuant to Section 1201 shall be evidenced by a Board
Resolution. In case of any redemption at the election of the
Company, the Company shall, at least 45 days and no more than 60
days prior to the Redemption Date fixed by the Company, notify
the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed and provide a copy of the notice of
redemption given to Holders of Securities to be redeemed pursuant
to Section 1205.
SECTION 1204. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed
(unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected by lot (or
such other method of selection as the Trustee may customarily
employ) not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities not previously called
for redemption.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part. In the
case of any such redemption in part, the unredeemed portion of the
<PAGE> 63
principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 (provided that the
Trustee shall itself have received notice not less than 45 days
prior to the Redemption Date) nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at
his address appearing in the Security Register.
All notices of redemption shall identify the
Securities to be redeemed (including CUSIP number) and shall
state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on and
after said date, and
(4) the place or places where such Securities are to
be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1206. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money sufficient
to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date; provided,
however, that any such deposit on a Redemption Date shall be
initiated prior to 12:00 noon (New York time) in same-day funds.
<PAGE> 64
SECTION 1207. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 307.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid, bear interest from the Redemption Date at the rate
borne by the Security.
SECTION 1208. Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at a place of payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder therefor or
his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without service
charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year
first above written.
GREENPOINT FINANCIAL CORP.
By:____________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:____________________________
Name:
Title:
<PAGE>
EXHIBIT A
GREENPOINT FINANCIAL CORP.
Junior Subordinated Debenture due 2027
$206,185,567
No. 1
CUSIP No. ___________
GREENPOINT FINANCIAL CORP., a corporation duly
organized and existing under the laws of the State of Delaware
(herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to The Bank of New York,
as Property Trustee, or registered assigns, the principal sum of
TWO HUNDRED SIX MILLION, ONE HUNDRED EIGHTY-FIVE THOUSAND, FIVE
HUNDRED SIXTY-SEVEN DOLLARS ($206,185,567) on June 1, 2027, and
to pay interest on said principal sum from December 1, 1997 or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, semi-annually (subject to deferral as set forth
herein) in arrears on June 1, and December 1 of each year,
commencing December 1, 1997, at the rate of 9.10% per annum until
the principal hereof shall have become due and payable, and on
any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per
annum. The amount of interest payable for any period will be
computed on the basis of twelve 30-day months and a 360-day year.
The amount of interest payable for any period shorter than a full
semi-annual period for which interest is computed, will be
computed on the basis of actual number of days elapsed in such
180-day period. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment of
the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay), with the same
force and effect as if made on the date the payment was
originally payable. A "Business Day" shall mean any day other
than a Saturday or a Sunday or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Trustee, or the principal corporate
trust office of the Property Trustee under the Declaration, is
closed for business. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in
whose name the Securities (or one or more Predecessor Securities,
as defined in the Indenture) is registered at the close of
business on the Regular Record Date for such interest
installment, which shall be the 15th day of the month of such
Interest Payment Date. Any such interest installment not so
punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name the Securities for one or
more Predecessor Securities is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities not less than 10 days
prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
<PAGE>
The Company shall have the right at any time during
the term of this Security, from time to time, to defer payment of
interest on such Security for up to 10 semi-annual periods, (an
"Extension Period"), provided that no Extension Period may extend
past the Maturity of this Security. There may be multiple
Extension Periods of varying lengths during the term of this
Security. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together
with interest thereon, compounded semi-annually at the rate
specified on this Security to the extent permitted by applicable
law. During any such Extension Period, the Company may not, and
may not permit any subsidiary of the Company to, (i) declare or
pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of
the Company's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu
with or junior in interest to the Securities or make any
guarantee payments with respect to any guarantee by the Company
of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu or junior in interest to the
Securities (other than (a) dividends or distributions in common
stock of the Company, (b) payments under the Guarantee, (c) any
declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto and (d) purchases of common
stock related to the issuance of common stock or rights under any
of the Company's benefit plans). Prior to the termination of any
such Extension Period, the Company may further extend the
interest payment period, provided that no Extension Period may
exceed 10 consecutive semi-annual periods or extend beyond the
Stated Maturity of the Securities. Upon the termination of any
such Extension Period and the payment of all amounts then due on
any Interest Payment Date, the Company may elect to begin a new
Extension Period subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at
the end thereof. The Company shall give the Property Trustee, the
Regular Trustees and the Trustee notice of its election of such
Extension Period at least one Business Day prior to the record
date for the related interest payment.
Payment of the principal of and interest on this
Security will be made at the office or agency of the Paying Agent
maintained for that purpose in the United States, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company, payment of
interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be
designated by the Person entitled thereto no later than the
relevant Record Date as specified in the Security Register.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and subject in
right of payment to the prior payment in full of all
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof,
-2-
<PAGE>
by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the
Indenture by each holder of Indebtedness, whether now outstanding
or hereafter incurred, and waives reliance by each such holder
upon said provisions.
Reference is hereby made to the further provisions of
the Indenture summarized on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
-3-
<PAGE>
IN WITNESS WHEREOF, GreenPoint Financial Corp. has caused this
instrument to be duly executed.
GREENPOINT FINANCIAL CORP.
By:_________________________
Name:
Title:
This is one of the Securities referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:__________________________
Authorized Signatory
Dated:
-4-
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of
Securities of GreenPoint Financial Corp. (the "Company"),
designated as its 9.10% Junior Subordinated Debentures due 2027
(herein called the "Securities"), limited in aggregate principal
amount to $206,185,567 issued under an Indenture, dated as of
June 3, 1997 (herein called the "Indenture"), between the Company
and the Trustee, a New York banking corporation, as Trustee
(herein called the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Trustee, the Company and the
Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
At any time on or after June 1, 2007, the Company
shall have the right, subject to the terms and conditions of
Article Twelve of the Indenture, to redeem this Security at the
option of the Company, in whole or in part, at the Redemption
Price (expressed as a percentage of the principal amount of such
securities) set forth below, plus accrued but unpaid interest to
the Redemption Date, if redeemed during the twelve-month period
beginning on May 30 of the years indicated below:
Year Percentage
-------- --------------
2007 104.4790%
2008 104.0311%
2009 103.5832%
2010 103.1353%
2011 102.6874%
2012 102.2395%
2013 101.7916%
2014 101.3437%
2015 100.8958%
2016 100.4479%
On or after June 1, 2017, the Redemption Price will be
100%, plus accrued and unpaid interest, if any, to the Redemption
Date.
Prior to June 1, 2007, if a Special Event as defined
in Article Twelve of the Indenture shall occur and be continuing,
the Company shall have the right, subject to the terms and condi-
tions of Article Twelve of the Indenture, to redeem this Security
at the option of the Company, without premium or penalty, in whole
but not in part, at a Redemption Price equal to the greater of
(i) 100% of the principal amount thereof and (ii) as determined by
a Quotation Agent, the sum of the present values of the principal
amount and premium payable with respect to an optional redemption
on such Securities on June 1, 2007, together with scheduled
payments of interest from the Redemption Date to June 1, 2007 (the
-5-
<PAGE>
"Remaining Life") discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of 30-day
months) at the Adjusted Treasury Rate, plus, in each case,
accrued interest thereon to the Redemption Date. Any redemption
pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days notice, at the Redemption Price. If the
Securities are only partially redeemed by the Company, the
Securities will be redeemed by lot (or such other method of
selection as the Trustee may customarily employ). In the event of
redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities
shall occur and be continuing, the principal of the Securities
may be declared due and payable in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction and
discharge or legal defeasance of the entire indebtedness of this
Security and for the defeasance of certain covenants under the
Indenture at any time upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of Holders of not less
than a majority in principal amount of the Outstanding Securities
affected by such modification, to modify the Indenture in a
manner affecting the rights of the Holders of the Securities;
provided that so such modification may, without the consent of
the Holder of each Outstanding Security affected thereby, (i)
except to the extent permitted and subject to the conditions set
forth in the Indenture with respect to the extension of the
Maturity of the Security, change the maturity of, the principal
of, or any installment of interest on, the Security or reduce the
principal amount thereof, or the rate of payment of interest
thereon, or change the place of payment where, or the coin or
currency in which, this Security or interest thereon is payable,
or impair the right to institute suit for the enforcement of such
payment on or after the Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the
provisions of the Indenture with respect to the subordination of
the Securities in a manner adverse to the Holders, (ii) reduce
the percentage in principal amount of the Outstanding Securities,
the consent of whose Holders is required for such supplemental
Indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of the Indenture or
certain defaults hereunder and their consequences) provided for
in the Indenture, or (iii) modify any of the provisions of
Section 513, Section 902 or Section 1008 of the Indenture, except
to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby, provided that, so long as any of the Preferred
Securities remains outstanding, no such amendment shall be made
that adversely affects the holders of the Preferred Securities,
and no termination of the Indenture shall occur, and no waiver of
an Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation
preference of the outstanding Preferred Securities unless and
until the principal of and any premium on the Securities and all
accrued and unpaid interest thereon have been paid in full.
-6-
<PAGE>
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities are issuable only in registered form
without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the
Holder surrendering the same.
THE SECURITIES AND THE INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
-7-
<PAGE>
In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date
of the declaration by the Commission of the effectiveness of a
registration statement under the Securities Act covering resales
of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) two
years after the later of the date of original issue and the last
date on which the Company or any affiliate of the Company was the
owner of such Capital Securities (or any predecessor thereto)
(the "Resale Restriction Termination Date"), the undersigned
confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer:
[Check One]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(3) ___ to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended) that has
furnished to the Trustee a signed letter containing
certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) ___ outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act of 1933, as amended; or
(5) ___ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act of 1933, as
amended; or
(6) ___ pursuant to an effective registration statement under
the Securities Act of 1933, as amended; or
(7) ___ pursuant to another available exemption from the
registration requirements of the Securities Act of
1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in
the name of any person other than the registered Holder thereof;
provided, however, that if box (3), (4), (5) or (7) is checked,
the Company or the Trustee may require, prior to registering any
such transfer of the Securities, in its sole discretion, such
written legal opinions, certifications (including an investment
letter in the case of box (3) or (4)) and other information as
the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements
of the Securities Act of 1933, as amended.
-8-
<PAGE>
If none of the foregoing boxes is checked, the Trustee or
Registrar shall not be obligated to register this Security in the
name of any person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth
herein and in Section 315 of the Indenture shall have been
satisfied.
Dated: __________________ Signed:________________________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:__________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with
respect to which it exercises sole investment discretion and that
it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is
aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ________ _____________________________________
NOTICE: To be executed by
an executive officer
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing the Capital Security outside the United States as a
"foreign person" in compliance with Rule 904 of Regulation S
under the Securities Act and is aware that the sale to it is
being made in reliance on Regulation S and acknowledges that a
holder of an interest in a Regulation S temporary global security
may not (i) receive the payment of any distributions, redemption
price or any other payments with respect to the holder's
beneficial interest in the temporary global security or (ii)
receive an interest in a Regulation S permanent global security
until (A) expiration of the 40th day after the later of the
commencement of the offering of the Capital Securities and the
closing date and (B) certification that the beneficial owner of
the interest in the Capital Security is a non-U.S. person.
Dated: ________ ______________________________________
-9-
<PAGE>
NOTICE: To be executed by an executive officer
-10-
CERTIFICATE OF TRUST
OF
GREENPOINT CAPITAL TRUST I
THIS Certificate of Trust of GreenPoint Capital Trust I
(the "Trust"), dated as of May 23, 1997, is being duly executed
and filed by the undersigned, as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del. C. Section
3801, et seq.).
1. Name. The name of the business trust formed hereby
is GreenPoint Capital Trust I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee
of the Trust, has executed this Certificate of Trust as of the
date first-above written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as trustee of the Trust
By /s/ Mary Jane Morrissey
-----------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
- -----------------------------------------------------------------
AMENDED AND RESTATED DECLARATION OF TRUST
GREENPOINT CAPITAL TRUST I
Dated as of June 3, 1997
- -----------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
INTERPRETATION AND DEFINITIONS................ 1
Section 1.1 Interpretation and Definitions............... 1
Administrators............................................ 2
Administrators' Authorization Certificate................. 2
Affiliate................................................. 2
Authorized Officer........................................ 2
Business Day.............................................. 2
Business Trust Act........................................ 2
Capital Security.......................................... 2
Capital Security Beneficial Owner......................... 2
Capital Security Certificate.............................. 3
Cedel..................................................... 3
Certificate............................................... 3
Certificate of Trust...................................... 3
Closing Date.............................................. 3
Code ..................................................... 3
Commission................................................ 3
Common Securities Holder.................................. 3
Common Security........................................... 3
Common Security Certificate............................... 3
Corporate Trust Office.................................... 3
Covered Person............................................ 3
Debenture Issuer.......................................... 3
Debenture Issuer Indemnified Person....................... 3
Debenture Trustee......................................... 4
Debentures................................................ 4
Delaware Trustee.......................................... 4
Depositary................................................ 4
Distribution.............................................. 4
DTC ..................................................... 4
DWAC ..................................................... 4
Euroclear................................................. 4
Exchange Act.............................................. 4
Federal Reserve........................................... 4
Fiduciary Indemnified Person.............................. 4
Fiscal Year............................................... 4
Global Security........................................... 4
Guarantee................................................. 4
Holder.................................................... 4
Indemnified Person........................................ 5
Indenture................................................. 5
Initial Purchasers........................................ 5
Institutional Accredited Investor......................... 5
Investment Company........................................ 5
Investment Company Act.................................... 5
Investment Company Event.................................. 5
i
<PAGE>
Page
Legal Action.............................................. 5
List of Holders........................................... 5
Majority in Liquidation Amount............................ 5
New Capital Securities.................................... 6
New Capital Security Certificate.......................... 6
Officers' Certificate..................................... 6
Paying Agent.............................................. 6
Payment Amount............................................ 6
Person.................................................... 6
Private Placement Legend.................................. 6
Property Account.......................................... 6
Property Trustee.......................................... 6
Pro Rata.................................................. 7
Qualified Institutional Buyer............................. 7
Quorum.................................................... 7
Registration Rights Agreement............................. 7
Regulation S.............................................. 7
Regulation S Global Security.............................. 7
Regulatory Capital Event.................................. 7
Related Party............................................. 7
Responsible Officer....................................... 7
Restricted Global Security................................ 8
Restricted Period......................................... 8
Restricted Security....................................... 8
Rule 144A................................................. 8
Rule 3a-5................................................. 8
Securities................................................ 8
Securities Act............................................ 8
Special Event............................................. 8
Sponsor................................................... 8
Successor Delaware Trustee................................ 8
Successor Entity.......................................... 8
Successor Property Trustee................................ 8
Successor Security........................................ 8
Super Majority............................................ 8
Tax Event................................................. 8
10% in Liquidation Amount................................. 9
Transfer Restricted Securities............................ 9
Transfer Restricted Securities Certificate................ 9
Treasury Regulations...................................... 9
Trust Enforcement Event................................... 9
Trust Indenture Act....................................... 9
Trustee" or "Trustees..................................... 9
ARTICLE 2
TRUST INDENTURE ACT..................... 10
Section 2.1 Trust Indenture Act; Application............ 10
Section 2.2 Lists of Holders of Securities.............. 10
ii
<PAGE>
Page
Section 2.3 Reports by the Property Trustee............. 10
Section 2.4 Periodic Reports to the Property Trustee.... 11
Section 2.5 Evidence of Compliance with
Conditions Precedent ....................... 11
Section 2.6 Trust Enforcement Events; Waiver............ 11
Section 2.7 Trust Enforcement Event; Notice............. 13
ARTICLE 3
ORGANIZATION......................... 13
Section 3.1 Name and Organization....................... 13
Section 3.2 Office...................................... 13
Section 3.3 Purpose..................................... 14
Section 3.4 Authority................................... 14
Section 3.5 Title to Property of the Trust.............. 15
Section 3.6 Powers and Duties of the Trustees
and the Administrators ..................... 15
Section 3.7 Prohibition of Actions by the Trust
and the Trustees ........................... 22
Section 3.8 Powers and Duties of the Property Trustee... 23
Section 3.9 Certain Duties and Responsibilities of
the Property Trustee ....................... 25
Section 3.10 Certain Rights of Property Trustee.......... 27
Section 3.11 Delaware Trustee............................ 29
Section 3.12 Execution of Documents...................... 29
Section 3.13 Not Responsible for Recitals or
Issuance of Securities ..................... 30
Section 3.14 Duration of Trust........................... 30
Section 3.15 Mergers..................................... 30
Section 3.16 Property Trustee May File Proofs of Claim... 32
ARTICLE 4
SPONSOR........................... 33
Section 4.1 Responsibilities of the Sponsor............. 33
Section 4.2 Compensation Indemnification and
Expenses of the Trustee .................... 33
ARTICLE 5
TRUST COMMON SECURITIES HOLDER................ 34
Section 5.1 Debenture Issuer's Purchase of
Common Securities .......................... 34
Section 5.2 Covenants of the Common Securities Holder... 34
ARTICLE 6
TRUSTEES AND ADMINISTRATORS................. 34
Section 6.1 Number of Trustees.......................... 34
Section 6.2 Delaware Trustee............................ 35
Section 6.3 Property Trustee; Eligibility............... 35
Section 6.4 Qualifications of Administrators
and Delaware Trustee Generally ............. 36
Section 6.5 Administrators.............................. 36
iii
<PAGE>
Page
Section 6.6 Appointment, Removal and
Resignation of Trustees .................... 36
Section 6.7 Vacancies among Trustees.................... 38
Section 6.8 Effect of Vacancies......................... 38
Section 6.9 Meetings.................................... 38
Section 6.10 Delegation of Power......................... 39
Section 6.11 Merger, Conversion, Consolidation or
Succession to Business ..................... 39
ARTICLE 7
THE SECURITIES........................ 39
Section 7.1 General Provisions Regarding Securities..... 39
Section 7.2 Distributions............................... 41
Section 7.3 Redemption of Securities.................... 42
Section 7.4 Redemption Procedures....................... 43
Section 7.5 Voting Rights of Capital Securities......... 44
Section 7.6 Voting Rights of Common Securities.......... 46
Section 7.7 Paying Agent................................ 48
Section 7.8 Transfer of Securities...................... 48
Section 7.9 Mutilated, Destroyed, Lost or
Stolen Certificates ........................ 49
Section 7.10 Deemed Security Holders..................... 50
Section 7.11 Global Securities........................... 50
Section 7.12 Restrictive Legend.......................... 52
Section 7.13 Special Transfer Provisions................. 54
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST............. 57
Section 8.1 Dissolution and Termination of Trust........ 57
Section 8.2 Liquidation Distribution
Upon Dissolution of the Trust .............. 58
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS.......... 58
Section 9.1 Liability................................... 58
Section 9.2 Exculpation................................. 59
Section 9.3 Fiduciary Duty.............................. 59
Section 9.4 Indemnification............................. 60
Section 9.5 Outside Businesses.......................... 63
ARTICLE 10
ACCOUNTING.......................... 63
Section 10.1 Fiscal Year................................. 63
Section 10.2 Certain Accounting Matters.................. 63
Section 10.3 Banking..................................... 64
Section 10.4 Withholding................................. 64
iv
<PAGE>
Page
ARTICLE 11
AMENDMENTS AND MEETINGS................... 65
Section 11.1 Amendments.................................. 65
Section 11.2 Meetings of the Holders of Securities;
Action by Written Consent .................. 67
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE..................... 69
Section 12.1 Representations and Warranties
of the Property Trustee .................... 69
Section 12.2 Representations and Warranties of
the Delaware Trustee ....................... 69
ARTICLE 13
MISCELLANEOUS........................ 70
Section 13.1 Notices..................................... 70
Section 13.2 Governing Law............................... 71
Section 13.3 Intention of the Parties.................... 71
Section 13.4 Headings.................................... 72
Section 13.5 Successors and Assigns...................... 72
Section 13.6 Partial Enforceability...................... 72
Section 13.7 Counterparts................................ 72
Section 13.8 Undertaking for Costs....................... 72
v
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") dated as of June 3, 1997 among GreenPoint
Financial Corp., a Delaware corporation, as Sponsor, and Mary
Beth Farrell, Robert Beck and David Carroll, as the initial
Administrators, The Bank of New York, as the initial Property
Trustee and The Bank of New York (Delaware) as the initial
Delaware Trustee, not in their individual capacities but solely
as Trustees, and the holders, from time to time, of undivided
beneficial ownership interests in the assets of the Trust to be
issued pursuant to this Declaration.
WHEREAS, the Trustees and the Sponsor established
GreenPoint Capital Trust I (the "Trust"), a business trust under
the Business Trust Act (as defined, together with other
capitalized terms, herein) pursuant to a Declaration of Trust
dated as of May 23, 1997 (the "Original Declaration") and a
Certificate of Trust (the "Certificate of Trust") filed with the
Secretary of State of the State of Delaware on May 23, 1997; and
WHEREAS, the sole purpose of the Trust shall be to
issue and sell certain securities representing undivided
beneficial ownership interests in the assets of the Trust, to
invest the proceeds from such sales in the Debentures issued by
the Debenture Issuer and to engage in only those activities
necessary or incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties
hereto that the Trust constitute a business trust under the
Business Trust Act, the Trustees hereby declare that all assets
contributed to the Trust be held in trust for the benefit of the
Holders, from time to time, of the Securities representing
undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings
assigned to them in this Section ;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified, supplemented or
amended from time to time;
<PAGE>
2
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise
defined in this Declaration or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural
and vice versa and a reference to any masculine form of a term
shall include the feminine form of a term, as applicable.
"Administrators" means each of Mary Beth Farrell,
Robert Beck and David Carroll solely in such Person's capacity as
Administrator of the Trust created and continued hereunder and
not in such Person's individual capacity, or such Administrator's
successor in interest in such capacity, or any successor
appointed as herein provided.
"Administrators' Authorization Certificate" means a
written certificate signed by two of the Administrators for the
purpose of establishing the terms and form of the Capital
Securities and the Common Securities as determined by the
Administrators.
"Affiliate" has the same meaning as given to that term
in Rule 405 of the Securities Act or any successor rule
thereunder.
"Authorized Officer" of a Person means the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, a Vice President, the principal financial
officer, the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company.
"Business Day" means any day other than a Saturday or
Sunday or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to
remain closed or a day on which the Corporate Trust Office of the
Property Trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as it may
be amended from time to time, or any successor legislation.
"Capital Security" has the meaning specified in
Section 7.1.
"Capital Security Beneficial Owner" means, with
respect to any beneficial interest in a Global Security,
ownership and transfers of which shall be maintained and made
through book entries by a Depositary, a Person who is the
beneficial owner of such beneficial interest, as reflected on the
books of the Depositary, or on the books of a Person maintaining
an account with such Depositary (as a direct or indirect
participant, in each case in accordance with the rules of such
Depositary).
<PAGE>
3
"Capital Security Certificate" means a certificate
representing a Capital Security.
"Cedel" means Cedel, S.A.
"Certificate" means a Common Security Certificate
or a Capital Security Certificate.
"Certificate of Trust" has the meaning specified
in the recitals hereto.
"Closing Date" means the date on which the Capital
Securities are issued and sold.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation. A refer-
ence to a specific section of the Code refers not only to such
specific section but also to any corresponding provision of any
federal tax statute enacted after the date of this Declaration, as
such specific section or corresponding provision is in effect on
the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange
Commission.
"Common Securities Holder" means GreenPoint Financial
Corp. in its capacity as purchaser and holder of all of the
Common Securities issued by the Trust.
"Common Security" has the meaning specified in Section
"Common Security Certificate" means a definitive
certificate in fully registered form representing a Common
Security.
"Corporate Trust Office" means the office of the
Property Trustee at which the corporate trust business of the
Property Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this
Declaration is located at 101 Barclay Street, Floor 21 West, New
York, New York 10286; Attention: Corporate Trust Trustee
Administration.
"Covered Person" means (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust's Affiliates; and (b) any
Holder of Securities.
"Debenture Issuer" means GreenPoint Financial Corp. in
its capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (a) any
Administrator; (b) any Affiliate of any Administrator; (c) any
officers, directors, shareholders, members, partners,
<PAGE>
4
employees, representatives or agents of any Administrator or any
Affiliate thereof; or (d) any officer, employee or agent of the
Trust or its Affiliates.
"Debenture Trustee" means The Bank of New York, in its
capacity as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor
trustee.
"Debentures" means the Securities (as defined in the
Indenture) to be issued by the Debenture Issuer and to be held by
the Property Trustee.
"Delaware Trustee" has the meaning set forth in Section .
"Depositary" means, with respect to Securities
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities.
"Distribution" means a distribution payable to Holders
of Securities in accordance with Section .
"DTC" means The Depository Trust Company, the initial
Depositary.
"DWAC" means Deposit and Withdrawal At Custodian
Service.
"Euroclear" means Morgan Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the
Federal Reserve System.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 9.4(B).
"Fiscal Year" has the meaning set forth in Section
10.1.
"Global Security" has the meaning set forth in Section
7.11.
"Guarantee" means the guarantee agreement of the
Sponsor in respect of the Capital Securities and the Common
Securities.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act;
provided, however, that in determining whether the Holders of the
requisite liquidation amount of Capital Securities have voted on
any matter provided for in this Declaration, then for the purpose
of such determination only (and not for any other purpose
hereunder), if the
<PAGE>
5
Capital Securities remain in the form of one or more Global
Securities, the term "Holders" shall mean the holder of the
Global Security acting at the direction of the Capital Security
Beneficial Owners.
"Indemnified Person" means a Debenture Issuer
Indemnified Person or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of June 3,
1997, between the Debenture Issuer and the Debenture Trustee, and
any indenture supplemental thereto pursuant to which the
Debentures are to be issued.
"Indenture Event of Default" means an "Event of
Default" as defined in the Indenture.
"Initial Purchasers" means Lehman Brothers Inc., J.P.
Morgan Securities Inc. and Keefe, Bruyette & Woods.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as the term is
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Investment Company" means an investment company as
defined in the Investment Company Act and the regulations
promulgated thereunder.
"Investment Company Act" means the Investment Company
Act of 1940, as amended from time to time, or any successor
legislation.
"Investment Company Event" means the receipt by the
Trust of an opinion of counsel, rendered by a law firm having a
recognized national securities practice, to the effect that, as a
result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or will be
considered an "investment company" that is required to be
registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the Closing Date.
"Legal Action" has the meaning set forth in Section
3.6(m)(ii)(j).
"List of Holders" has the meaning specified in
Section 2.2(a).
"Majority in Liquidation Amount" means, except as
provided in the terms of the Capital Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities, voting
together as a single class, or, as the context may require,
Holders of outstanding Capital Securities or Holders of
outstanding Common Securities, voting separately as a class, who
are the record owners of more than 50% of the aggregate
liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued
<PAGE>
6
and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the
relevant class.
"New Capital Securities" has the meaning specified in
Section 7.1.
"New Capital Security Certificate" has the meaning
specified in Section 7.1.
"Officers' Certificate" means, with respect to any
Person (other than Administrators who are natural persons), a
certificate signed by two Authorized Officers of such Person on
behalf of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on behalf
of such Person in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each
such officer and on behalf of such Person, such condition or
covenant has been complied with; provided, that the term
"Officers' Certificate", when used with reference to
Administrators who are natural persons shall mean a certificate
signed by two of the Administrators which otherwise satisfies the
foregoing requirements.
"Paying Agent" has the meaning specified in Section
3.8(h).
"Payment Amount" has the meaning specified in Section
7.2(a).
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof or any other entity of whatever
nature.
"Private Placement Legend" as defined in Section 314
of the Indenture.
"Property Account" has the meaning specified in
Section 3.8(c).
"Property Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 6.3.
<PAGE>
7
"Pro Rata" means pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding.
"Qualified Institutional Buyer" or "QIB" has the
meaning specified in Rule 144A under the Securities Act.
"Quorum" means a majority of the Administrators or, if
there are only two Administrators, both of them.
"Redemption Price" has the meaning specified in
Section 7.3(a).
"Registration Rights Agreement" means the Registration
Rights Agreement dated the date hereof between the Debenture
Issuer, the Trust and the Initial Purchasers for the benefit of
themselves and the Holders as the same may be amended from time
to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities
Act and any successor regulation thereto.
"Regulation S Global Security" means any Global
Security or Securities evidencing Securities that are to be
traded pursuant to Regulation S.
"Regulatory Capital Event" means that the Debenture
Issuer shall have received an opinion of independent bank
regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to or change (including
any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any rules, guidelines or
policies of the Federal Reserve or (b) any official
administrative pronouncement or judicial decision for
interpreting or applying such laws or regulations which amendment
or change is effective or such pronouncement or decision is
announced on or after the date of original issuance of the
Capital Securities, the Capital Securities do not constitute, or
within 90 days of the date thereof, will not constitute Tier I
capital (or its then equivalent); provided, however, that the
distribution of the Securities in connection with the liquidation
of the Trust by the Debenture Issuer shall not in and of itself
constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Tax Event or an
Investment Company Event.
"Related Party" means, with respect to the Sponsor,
any direct or wholly owned subsidiary of the Sponsor or any
Person that owns, directly or indirectly, 100% of the outstanding
voting securities of the Sponsor.
"Responsible Officer" means, with respect to the
Property Trustee, any officer within the Corporate Trust Office
of the Property Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, any assistant
treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a
<PAGE>
8
particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Restricted Global Security" means any Global Security
or Securities evidencing Securities that are to be traded
pursuant to Rule 144A.
"Restricted Period" shall have the meaning specified in
Section 7.13(g).
"Restricted Security" has the meaning assigned to such
term in Rule 144(a)(3) of the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 3a-5" means Rule 3a-5 under the Investment
Company Act or any successor rule thereunder.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital
Event or an Investment Company Event.
"Sponsor" means GreenPoint Financial Corp., a Delaware
corporation, or any successor entity in a merger, consolidation
or amalgamation, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified
in Section 6.6(b).
"Successor Entity" has the meaning specified in
Section 3.15(b)(i).
"Successor Property Trustee" has the meaning specified in
Section 6.6(b).
"Successor Security" has the meaning specified in
Section 3.15(b)(i)b.
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" means the receipt by the Debenture Issuer
of an opinion of counsel, rendered by a law firm having a
national tax practice, to the effect that, as a result of any
amendment to, change in or announced proposed change in the laws
(or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is adopted or which
proposed change, pronouncement or decision is announced on or
after May 29, 1997, there is more than an insubstantial risk that
(i) the Trust is, or will be within 90
<PAGE>
9
days of the date of such opinion, subject to the United
States federal income tax with respect to income received or
accrued on the Debentures, (ii) interest payable by the Debenture
Issuer on such Debentures is not, or within 90 days of the date
of such opinion, will not be deductible by the Debenture Issuer,
in whole or in part, for United States federal income tax
purposes, or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimus amount of
other taxes, duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided
in the terms of the Capital Securities or by the Trust Indenture
Act, Holder(s) of outstanding Securities, voting together as a
single class, or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Transfer Restricted Securities" has the meaning
specified in Section 7.1.
"Transfer Restricted Securities Certificate" has the
meaning specified in Section 7.1.
"Treasury Regulations" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities
means an Indenture Event of Default has occurred and is
continuing in respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has
signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
<PAGE>
10
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Property Trustee shall be the only Trustee
which is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the Trust's classification as a
grantor trust for United States federal income tax purposes and
shall not affect the nature of the Securities as equity
securities representing undivided beneficial ownership interests
in the assets of the Trust.
Section 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrators on
behalf of the Trust shall provide the Property Trustee with a
list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the
Securities ("List of Holders"), (i) not later than December 15
and June 15 of each year and current as of such date, and (ii) at
any other time, within 30 days of receipt by the Trust of a
written request from the Property Trustee for a List of Holders
as of a date no more than 15 days before such List of Holders is
given to the Property Trustee; provided that neither the Sponsor
nor the Administrators on behalf of the Trust shall be obligated
to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the
Property Trustee by the Sponsor and the Administrators on behalf
of the Trust. The Property Trustee shall preserve, in as current
a form as is reasonably practicable, all information contained in
Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given
to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its
obligations under, and shall be entitled to the benefits of,
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing
in the year of the first anniversary of the issuance of the
Capital Securities), the Property Trustee shall provide to
<PAGE>
11
the Holders of the Capital Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Administrators on behalf
of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the
Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions
Precedent.
Each of the Sponsor and the Administrators on behalf
of the Trust shall provide to the Property Trustee such evidence
of compliance with any conditions precedent, if any, provided for
in this Declaration that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of
the Capital Securities may, by vote or written consent, on behalf
of the Holders of all of the Capital Securities, waive any past
Trust Enforcement Event in respect of the Capital Securities and
its consequences, provided that, if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, the Trust
Enforcement Event under the Declaration shall
also not be waivable; or
(ii) requires the consent or vote of greater than
a majority in principal amount of the
holders of the Debentures (a "Super
Majority") to be waived under the Indenture,
the Trust Enforcement Event under the
Declaration may only be waived by the vote
or written consent of the Holders of at
least the proportion in liquidation amount
of the Capital Securities that the relevant
Super Majority represents of the aggregate
principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be
in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Trust Enforcement Event
with respect to the Capital Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration
and the Capital Securities, but no such waiver shall extend to
any subsequent or other Trust Enforcement Event with
<PAGE>
12
respect to the Capital Securities or impair any right
consequent thereon. Any waiver by the Holders of the Capital
Securities of a Trust Enforcement Event with respect to the
Capital Securities shall also be deemed to constitute a waiver by
the Holders of the Common Securities of any such Trust
Enforcement Event with respect to the Common Securities for all
purposes of this Declaration without any further act, vote, or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of
the Common Securities may, by vote or written consent, on behalf
of the Holders of all of the Common Securities, waive any past
Trust Enforcement Event in respect of the Common Securities and
its consequences, provided that, if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities
are deemed to have waived such Trust
Enforcement Event under the Declaration as
provided below in this Section , the Trust
Enforcement Event under the Declaration
shall also not be waivable; or
(ii) requires the consent or vote of a Super
Majority to be waived under the Indenture,
except where the Holders of the Common
Securities are deemed to have waived such
Trust Enforcement Event under the Declaration
as provided below in this Section, the Trust
Enforcement Event under the Declaration may
only be waived by the vote or written consent
of the Holders of at least the proportion in
liquidation amount of the Common Securities
that the relevant Super Majority represents
of the aggregate principal amount of the
Debentures outstanding;
provided further, each Holder of Common Securities will be deemed
to have waived any Trust Enforcement Event and all Trust
Enforcement Events with respect to the Common Securities and the
consequences thereof until all Trust Enforcement Events with
respect to the Capital Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events
with respect to the Capital Securities have been so cured, waived
or otherwise eliminated, the Property Trustee will be deemed to
be acting solely on behalf of the Holders of the Capital
Securities and only the Holders of the Capital Securities will
have the right to direct the Property Trustee in accordance with
the terms of the Securities. The foregoing provisions of this
Section shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to
the foregoing provisions of this Section , upon such waiver, any
such default shall cease to exist and any Trust Enforcement Event
with respect to the Common Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration,
but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Common Securities or impair
any right consequent thereon.
<PAGE>
13
(c) A waiver of an Indenture Event of Default by the
Property Trustee at the direction of the Holders of the Capital
Securities constitutes a waiver of the corresponding Trust
Enforcement Event with respect to the Capital Securities under
this Declaration. The foregoing provisions of this Section 2.6(c)
shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act
and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after
the occurrence of a Trust Enforcement Event, transmit by mail,
first class postage prepaid, to the Holders of the Securities,
notices of all defaults with respect to the Securities actually
known to a Responsible Officer of the Property Trustee, unless
such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be an Indenture Event of Default, not including
any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, except for
a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as a
Responsible Officer of the Property Trustee in good faith
determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 501(1) and 501(2)
of the Indenture; or
(ii) any default as to which the Property Trustee
shall have received written notice or of
which a Responsible Officer of the Property
Trustee charged with the administration of
this Declaration shall have actual
knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization.
The Trust hereby continued is named "GreenPoint
Capital Trust I" as such name may be modified from time to time
by the Administrators following written notice to the Holders of
Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the
Administrators.
<PAGE>
14
Section 3.2 Office.
The address of the principal executive office of the
Trust is c/o GreenPoint Financial Corp., Attn: Chief Financial
Officer, 90 Park Avenue, New York, New York 10016. On 10 Business
Days' written notice to the Holders of Securities, the
Administrators may designate another principal office.
Section 3.3 Purpose.
The exclusive purposes and functions of the Trust are
(a) to issue and sell Securities and use the gross proceeds from
such sale to acquire the Debentures, and (b) except as otherwise
limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments,
mortgage, pledge any of its assets or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust
not to be classified as a grantor trust for United States federal
income tax purposes.
By the acceptance of this Trust, none of the Trustees,
the Sponsor, the Holders of the Capital Securities or Common
Securities or the Capital Securities Beneficial Owners will take
any position for United States federal income tax purposes which
is contrary to the classification of the Trust as a grantor
trust.
Section 3.4 Authority.
Subject to the limitations provided in this
Declaration, the Property Trustee and the Administrators shall
have exclusive authority to carry out the purposes of the Trust.
An action taken by the Administrators in accordance with their
powers shall constitute the act of and serve to bind the Trust
and an action taken by the Property Trustee on behalf of the
Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Property Trustee
or any Administrator acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Property
Trustee or an Administrator to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and
authority of the Property Trustee or an Administrator as set
forth in this Declaration. The Administrators shall have only
those ministerial duties set forth herein with respect to
accomplishing the purposes of the Trust and are not intended to
be trustees or fiduciaries with respect to the Trust or the
Holders. The Property Trustee shall have the right, but shall not
be obligated except as provided in Section 3.6, to perform those
duties assigned to the Administrators.
(a) Except as expressly set forth in this Declaration
and except if a meeting of the Administrators is called with
respect to any matter over which the Administrators have power to
act, any power of the Administrators may be exercised by, or with
the consent of, any one such Administrator.
(b) Except as otherwise required by the Business Trust
Act or applicable law, any Administrator is authorized to execute
on behalf of the Trust any documents which the Administrators
have the power and authority to cause the Trust to execute
pursuant to Section 3.6(b), provided, that the registration
statements referred to in Section 3.6(b)(i),
<PAGE>
15
including any amendments thereto, shall be signed by or on
behalf of a majority of the Administrators; and
(c) an Administrator may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purposes of
signing any documents which the Administrators have power and
authority to cause the Trust to execute pursuant to Section 3.6.
The duties and responsibilities of the Trustees and
the Administrators shall be as provided by this Declaration and,
in the case of the Property Trustee, by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Declaration
shall require any Trustee or Administrator to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Declaration relating to the
conduct or affecting the liability of or affording protection to
the Trustees or Administrators shall be subject to the provisions
of this Article. To the extent that, at law or in equity, a
Trustee or an Administrator has duties and liabilities relating
thereto to the Trust or to the Holders, such Administrator or
Trustee shall not be liable to the Trust or to any Holder for
such Administrator's good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of the
Administrators or Trustees otherwise existing at law or in
equity, are agreed by the Holders to replace such other duties
and liabilities of the Administrators or Trustees.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Account or as otherwise provided in
this Declaration, legal title to all assets of the Trust shall be
vested in the Trust. The Holders shall not have legal title to
any part of the assets of the Trust, but shall have an undivided
beneficial ownership interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Trustees and the
Administrators.
(A) The Trustees and the Administrators shall conduct
the affairs of the Trust in accordance with the terms of this
Declaration. Subject to the limitations set forth in paragraph
(B) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees and/or the Administrators
shall have the authority to enter into all transactions and
agreements determined by the Trustees or the Administrators to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees or the Administrators, as the
case may be, under this Declaration, and to perform all acts in
furtherance thereof, including without limitation, the following:
<PAGE>
16
(i) Each Administrator shall have the power and
authority to act on behalf of the Trust with respect to the
following matters:
(a) to establish the terms and form of the Capital
Securities and the Common Securities in the manner specified in
Section 7.1 and issue and sell the Capital Securities and the
Common Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than two series of
Capital Securities (which will consist exclusively of the
Transfer Restricted Securities and the New Capital Securities)
and no more than one series of Common Securities, and, provided
further, that there shall be no interests in the Trust other than
the Securities, and the issuance of Securities shall be limited
to a one-time, simultaneous issuance of both Transfer Restricted
Securities and Common Securities on the Closing Date and a
one-time issuance of New Capital Securities pursuant to an
exchange offer required pursuant to the Registration Rights
Agreement;
(b) in connection with the issue and sale of the
Capital Securities to:
(i) execute and file with the Commission one or
more registration statements on the
applicable forms prepared by the Sponsor,
including any amendments thereto, pertaining
to the Capital Securities, the Guarantee and
the Debentures;
(ii) if deemed necessary or desirable by the
Sponsor, execute and file an application,
prepared by the Sponsor, to the Private
Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market, the
New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq
National Market for listing of any Capital
Securities, the Guarantee and the
Debentures;
(iii) if deemed necessary or desirable by the
Sponsor, execute and file with the
Commission a registration statement on Form
8-A, including any amendments thereto,
prepared by the Sponsor, relating to the
registration of the Capital Securities, the
Guarantee and the Debentures under Section
12(b) of the Exchange Act;
(iv) execute and file any documents prepared by
the Sponsor, or take any acts as determined
by the Sponsor to be necessary, in order to
qualify or register all or part of the
Capital Securities in any State in which the
Sponsor has determined to qualify or
register such Capital Securities for sale;
(v) execute and enter into the Registration
Rights Agreement.
(c) to acquire the Debentures with the proceeds of the
sale of the Capital Securities and the Common Securities;
provided, however, that the Administrators shall cause legal
title to the Debentures to be held of record in the name of the
Property Trustee for the benefit of the Holders of the Capital
Securities and the Holders of the Common Securities;
<PAGE>
17
(d) to give the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Special Event;
provided that the Administrators shall consult with the Sponsor
and the Property Trustee before taking or refraining from taking
any action in relation to any such Special Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
Section 316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices
to the Holders of Capital Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may
be required of the Administrators pursuant to the terms of this
Agreement and the Securities;
(g) to give the certificate required by Section
314(a)(4) of the Trust Indenture Act to the Property Trustee,
which certificate may be executed by any Administrator;
(h) to incur expenses that are necessary or incidental
to carry out any of the purposes of the Trust;
(i) to act as, or appoint another Person to act as,
registrar and transfer agent for the Securities;
(j) to give prompt written notice to the Holders of
the Securities of any notice received from the Debenture Issuer
of its election to defer payments of interest on the Debentures
by extending the interest payment period under the Debentures as
authorized by the Indenture;
(k) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrators, on behalf of the Trust;
(l) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf of the
Trust in all matters necessary or incidental to the foregoing;
and
(m) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware.
No provision of this Declaration shall be construed to
relieve an Administrator from liability for his own grossly
negligent action, his own grossly negligent failure to act, or
his own willful misconduct, except that:
<PAGE>
18
(i) prior to the occurrence of a Trust Enforcement
Event and after the curing or waiving of such
Trust Enforcement Event that may have occurred:
(A) the duties and obligations of the
Administrators shall be determined solely by
the express provisions of this Declaration
and the Administrator shall not be liable
except for the performance of such duties
and obligations as are specifically set
forth in this Declaration, and no implied
covenants or obligations shall be read into
this Declaration against the Administrators;
and
(B) in the absence of bad faith on the part
of an Administrator, such Administrator may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to such Administrator and
conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any
provision hereof are specifically required
to be furnished to such Administrator, such
Administrator shall be under a duty to
examine the same to determine whether or
not they conform to the requirements of this
Declaration;
(ii) an Administrator shall not be liable for any
error of judgment made in good faith unless it
shall be proved that such Administrator was
negligent in ascertaining the pertinent facts;
(iii) an Administrator shall not be responsible
for monitoring the compliance by the
Property Trustee or the Sponsor with their
respective duties under this Declaration,
nor shall such Administrator be liable for
any default or misconduct of the Property
Trustee or the Sponsor;
(iv) an Administrator may conclusively rely and shall
be fully protected in acting or refraining from
acting upon any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond,
debenture, note, or other evidence of
indebtedness or other paper or document believed
by him to be genuine and to have been signed,
sent or presented by the proper party or parties;
(v) an Administrator shall have no duty to see to any
recording, filing or registration or any
instrument (including any financing or
continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or
registration thereof;
<PAGE>
19
(vi) the Administrators may consult with counsel or
other experts of their selection and the advice
or opinion of such counsel and experts with
respect to legal matters or advice within the
scope of such experts' area of expertise shall be
full and complete authorization and protection in
respect of any action taken, suffered or omitted
by them hereunder in good faith and in accordance
with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The
Administrators shall have the right at any time
to seek instructions concerning the
administration of this Declaration from any court
of competent jurisdiction;
(vii) the Administrators shall be under no obligation
to exercise any of the rights or powers vested
in them by this Declaration at the request or
direction of any Holder, unless such Holder shall
have provided to the Administrators security and
indemnity, reasonably satisfactory to the Adminis-
trators, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that
might be incurred by them in complying with such
request or direction, including such reasonable
advances as may be requested by them;
(viii) an Administrator shall not be bound to make
any investigation into the facts or matters
stated in any resolution, certificate,
statement, instrument, opinion, report,
notice, request, direction, consent, order,
bonds, debenture, note, other evidence of
indebtedness or other paper or document, but
he, in his discretion, may make such further
inquiry or investigation into such facts or
matters as he may see fit;
(ix) an Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents,
custodians, nominees or attorneys and such
Administrator shall not be responsible for any
misconduct or negligence on the part of any agent
or attorney appointed with due care by him
hereunder;
(x) any action taken by an Administrator or his agents
hereunder shall bind the Trust and the Holders of
the Securities, and the signature of such
Administrator or his agents alone shall
be sufficient and effective to perform
any such action and no third party shall
be required to inquire as to the authority of
such Administrator to so act or as to his
compliance with any of the terms and provisions
of this Declaration, both of which shall
be conclusively evidenced by such Administrator's
or his agent's taking such action;
(xi) except as otherwise expressly provided by this
Declaration, an Administrator shall not be under
any obligation to take any action that is
discretionary under the provisions of this
Declaration; and
<PAGE>
20
(xii) an Administrator shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to
be authorized or within the
discretion or rights or powers conferred
upon it by this Declaration.
The Administrators shall exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes
and functions of the Trust set out in Section 3.3, and the
Administrators shall have no power to, and shall not, take any
action that is inconsistent with the purposes and functions of
the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrators shall
have none of the powers or the authority of the Property Trustee
set forth in Section 3.8.
Any expenses incurred by the Administrators pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
(ii) As among the Trustees and the
Administrators, the Property Trustee shall have the
power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(a) the establishment of the Property Account;
(b) the receipt of the Debentures;
(c) the collection of interest, principal (and premium,
if any) and any other payments made in respect of the Debentures
in the Property Account;
(d) the distribution through the Paying Agent of amounts
owed to the Holders in respect of the Securities;
(e) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(f) the sending of notices of default and other
information regarding the Securities and the Debentures to the
Holders in accordance with this Declaration;
(g) the distribution of the Trust Property in accordance
with the terms of this Declaration;
(h) subject to Section 3.9(a), after any Event of
Default (provided that such Event of Default is not by or with
respect to the Property Trustee), the taking of any action
incidental to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to give effect to the
terms of this Declaration and protect
<PAGE>
21
and conserve the Trust Property for the benefit of
the Holders (without consideration of
the effect of any such action on any particular Holder);
(i) to bring or defend, pay, collect,
compromise, arbitrate, resort to legal action or
otherwise adjust claims or demands of or against
the Trust ("Legal Action"); provided, however, if
the Property Trustee fails to enforce its rights
with respect to the Junior Subordinated
Debentures held by the Trust, any record holder
of Capital Securities may, to the fullest extent
permitted by law, institute legal proceedings
directly against the Company to enforce the
Property Trustee's rights under such Junior
Subordinated Debentures without first instituting
any legal proceedings against such Property
Trustee or any other person or entity. In
addition, if a Trust Enforcement Event has
occurred and is continuing and such event is
attributable to the failure of the Company to pay
interest, principal or other required payments on
the Junior Subordinated Debentures issued to the
Trust on the date such interest, principal or
other payment is otherwise payable, then a record
holder of Capital Securities may, on or after the
respective due dates specified in the Junior
Subordinated Debentures, institute a proceeding
directly against the Company under the Indenture
for enforcement of payment on Junior Subordinated
Debentures having a principal amount equal to the
aggregate liquidation amount of the Capital
Securities held by such holder. In connection
with such Direct Action, the Company will be
subrogated to the rights of such record holder of
Capital Securities to the extent of any payment
made by the Company to such record holder of
Capital Securities.
(B) So long as this Declaration remains in effect, the
Trust (or the Trustees or Administrators acting on behalf of the
Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the
Administrators may cause the Trust to (i) acquire any investments
or engage in any activities not authorized by this Declaration,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided
herein, (iii) take any action that would reasonably be expected
to cause the Trust to fail to cease to qualify as a "grantor
trust" for United States federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt or
(v) take or consent to any action that would result in the
placement of a lien on any of the Trust Property. The Property
Trustee shall at the sole cost and expense of the Trust defend
all claims and demands of all Persons at any time claiming any
lien on any of the Trust Property adverse to the interest of the
Trust or the Holders in their capacity as Holders.
(C) Notwithstanding anything herein to the contrary,
the Administrators, the Property Trustee and the Holders of a
Majority in liquidation amount of the Common Securities are
authorized and directed to conduct the affairs of the Trust and
to operate the Trust so that the Trust will not be deemed to be
an "investment company" required to be
<PAGE>
22
registered under the Investment Company Act, or to be
characterized as other than a grantor trust for United States
federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Debenture Issuer for United States
federal income tax purposes; provided, however, that the Property
Trustee shall not be required to take any action pursuant to this
paragraph (c) that is not otherwise expressly required of the
Property Trustee pursuant to the terms of this Declaration. In
this connection, the Property Trustee, acting at the written
direction of the Holders of a Majority in liquidation amount of
the Common Securities is authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or
this Declaration, as amended from time to time, that the Holders
of a Majority in liquidation amount of Common Securities
determines in its discretion to be necessary or desirable for
such purposes, even if such action adversely affect the interests
of the Holders of the Capital Securities.
Section 3.7 Prohibition of Actions by the Trust and
the Trustees.
(a) The Trust shall not, and the Trustees (including
the Property Trustee) shall cause the Trust not to, engage in any
activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees
(including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust
from holding the Debentures, but shall
distribute all such proceeds to Holders of
Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than the Debentures
(and any interest or proceeds received thereon);
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way
as to vary the Trustassets;
(vi) possess any power or otherwise act in such a
way as to vary the terms of the Securities
in any way whatsoever (except to the extent
expressly authorized in this Declaration or
by the terms of the Securities);
(vii) issue any securities or other evidences
of beneficial ownership of, or beneficial interest
in, the Trust other than the Securities; or
(viii) other than as provided in this Declaration or by
the terms of the Securities, (A) direct the time, method
and place of exercising any trust or power conferred upon
the Debenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul
any declaration
<PAGE>
23
that the principal of all the Debentures
shall be due and payable, or (D)
consent on behalf of the Holders to
any amendment, modification or termination of the
Indenture or the Debentures where such consent
shall be required unless, in each case, the Trust
shall have received (A) the prior approval
of the Majority in Liquidation Amount of the
Capital Securities; provided, however, that
where a consent or action under the
Indenture would require the consent or act
of the holders of more than a majority of
the aggregate liquidation amount of
Debentures affected thereby, only the
Holders of the percentage of the aggregate
stated liquidation amount of the Capital
Securities which is at least equal to the
percentage required under the Indenture may
direct the Property Trustee to give such
consent to take such action and (B) an
opinion of counsel to the effect that such
modification will not cause more than an
insubstantial risk that the Trust will be
deemed an Investment Company required to be
registered under the Investment Company Act,
or the Trust will not be classified as a
grantor trust for United States Federal
income tax purposes; or
(ix) take any action inconsistent with the status
of the Trust as a grantor trust for United
States federal income tax purposes; or
(x) revoke any action previously authorized or
approved by a vote of the Holders of the
Capital Securities except pursuant to a
subsequent vote of the Holders of the
Capital Securities.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned
by and held of record in the name of the Property Trustee in
trust for the benefit of the Trust and the Holders of the
Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with
Section 6.6. Such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Debentures to the Administrators or to
the Delaware Trustee (if the Property Trustee does not also act
as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Account") in
of and under the exclusive control of the Property
the name Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by
the Property Trustee, deposit such funds into
<PAGE>
24
the Property Account and make payments
to the Holders of the Capital Securities and
Holders of the Common Securities
from the Property Account in accordance
with Section 7.2. Funds in the Property
Account shall be held uninvested until
disbursed in accordance with this
Declaration. The Property Account
shall be an account that is maintained
with a banking institution the rating
on whose long-term unsecured
indebtedness is at least equal to
the rating assigned to the Capital
Securities by a "nationally recognized
statistical rating organization", as that
term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect
the redemption of the Capital Securities and
the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued
by the Administrators in accordance with the
terms of the Securities, engage in such
ministerial activities as so directed and as
shall be necessary or appropriate to effect
the distribution of the Debentures to
Holders of Securities upon the occurrence of
a Special Event.
(d) The Property Trustee shall take all actions and
perform such duties as may be specifically required of the
Property Trustee pursuant to the terms of this Agreement and the
Securities.
(e) The Property Trustee may take any Legal Action
which arises out of or in connection with a Trust Enforcement
Event of which a Responsible Officer of the Property Trustee has
actual knowledge or the Property Trustee's duties and obligations
under this Declaration or the Trust Indenture Act.
(f) No resignation or removal of the Property Trustee
shall be effective unless either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been
appointed and has accepted that appointment
in accordance with Section 6.6.
(g) Subject to such limitations as are necessary to
insure compliance with Section , the Property Trustee shall have
the legal power to exercise all of the rights, powers and
privileges of a holder of Debentures under the Indenture and, if
a Trust Enforcement Event actually known to a Responsible Officer
of the Property Trustee occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities,
<PAGE>
25
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption
payments or liquidation payments on behalf of the
Trust with respect to all Securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time
and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee. In the event the
Capital Securities do not remain in the form of one or more
Global Securities, the Property Trustee will act as Paying Agent
and may designate an additional or substitute Paying Agent at any
time.
The Property Trustee shall exercise the powers set
forth in this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and the
Property Trustee shall have no power to, and shall not, take any
action that is inconsistent with the purposes and functions of
the Trust set out in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of any
Trust Enforcement Event and after the curing of all Trust
Enforcement Events that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this
Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case a Trust
Enforcement Event has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the
Property Trustee has actual knowledge, the Property Trustee shall
exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be
construed to relieve the Property Trustee from liability for its
own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) prior to the occurrence of a Trust
Enforcement Event and after the curing or
waiving of all such Trust Enforcement Events
that may have occurred:
a. the duties and obligations of the Property
Trustee shall be determined solely by the
express provisions of this Declaration and
the Property Trustee shall not be liable
except for the performance of such duties
and obligations as are specifically set
forth in this Declaration, and no implied
covenants or obligations shall be read into
this Declaration against the Property
Trustee; and
<PAGE>
26
b. in the absence of bad faith on the part of
the Property Trustee, the Property Trustee
may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Property Trustee and conforming to the
requirements of this Declaration; but in the
case of any such certificates or opinions
that by any provision hereof
are specifically required to be furnished
to the Property Trustee, the
Property Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for
any error of judgment made in good faith by
a Responsible Officer of the Property
Trustee, unless it shall be proved that the
Property Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable
with respect to any action taken or omitted
to be taken by it without negligence, in
good faith in accordance with the direction
of the Holders of not less than a Majority
in Liquidation Amount of the Securities
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Property Trustee, or
exercising any trust or power conferred upon
the Property Trustee under this Declaration;
(iv) the Property Trustee's sole duty with
respect to the custody, safe-keeping and
physical preservation of the Debentures and
the Property Account shall be to deal with
such property in a similar manner as the
Property Trustee deals with similar property
for its own account, subject to the
protections and limitations on liability
afforded to the Property Trustee under this
Declaration and the Trust Indenture Act;
(v) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or
assessments levied thereon or in connection
therewith;
(vi) the Property Trustee shall not be liable for
any interest on any money received by it
except as it may otherwise agree in writing
with the Sponsor. Money held by the Property
Trustee need not be segregated from other
funds held by it except in relation to the
Property Account maintained by the Property
Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by
law; and
(vii) the Property Trustee shall not be
responsible for monitoring the compliance by
the Administrators or the Sponsor with their
respective
<PAGE>
27
duties under this Declaration,
nor shall the Property Trustee be liable for
any default or misconduct of the
Administrators or the Sponsor.
(viii) Money held by the Trustee in trust hereunder
need not be segregated from other funds
except to the extent required by law. The
Trustee shall be under no liability for
interest on any money received by it
hereunder except as otherwise agreed in writing with
the Debenture Issuer.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely
and shall be fully protected in acting or
refraining from acting upon any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent,
order, bond, debenture, note, other evidence
of indebtedness or other paper or document
believed by it to be genuine and to have
been signed, sent or presented by the proper
party or parties;
(ii) any direction or act of the Sponsor or the
Administrators contemplated by this
Declaration shall be sufficiently evidenced
by an Officers' Certificate (or, with
respect to the establishment of the terms
and form of the Securities by the
Administrators, by an Administrators'
Authorization Certificate);
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem
it desirable that a matter be proved or
established before taking, suffering or
omitting any action hereunder, the Property
Trustee (unless other evidence is herein
specifically prescribed) may, in the absence
of bad faith on its part, request and
conclusively rely upon an Officers'
Certificate which, upon receipt of such
request, shall be promptly delivered by the
Sponsor or the Administrators;
(iv) the Property Trustee shall have no duty to
see to any recording, filing or registration
of any instrument (including any financing
or continuation statement or any filing
under tax or securities laws) or any
rerecording, refiling or registration
thereof;
(v) the Property Trustee may consult with counsel of
its choice or other experts and the advice or opinion
of such counsel and experts with respect to legal matters
or advice within the scope of such experts'
area of expertise shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice
or opinion, such counsel may be counsel to the
Sponsor or any of its Affiliates, and may
include any
<PAGE>
28
of its employees. The Property Trustee
shall have the right at any time to seek
instructions concerning the administration
of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights
or powers vested in it by this Declaration
at the request or direction of any Holder,
unless such Holder shall have provided
to the Property Trustee security and
indemnity, reasonably satisfactory to
the Property Trustee, against the costs,
expenses (including attorneys' fees and
expenses and the expenses of the Property
Trustee's agents, nominees or custodians)
and liabilities that might be incurred by
it in complying with such request or
direction, including such reasonable
advances as may be requested by
the Property Trustee; provided that, nothing
contained in this Section 3.10(a) shall be
taken to relieve the Property Trustee, upon the
occurrence of an Indenture Event of Default,
of its obligation to exercise the rights and
powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to
make any investigation into the facts or
matters stated in any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent,
order, bond, debenture, note, other evidence
of indebtedness or other paper or document,
but the Property Trustee, in its discretion,
may make such further inquiry or
investigation into such facts or matters as
it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any
duties hereunder either directly or by or
through agents, custodians, nominees or
attorneys and the Property Trustee shall not
be responsible for any misconduct or
negligence on the part of any agent or
attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders
of the Securities, and the signature of the Property
Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party
shall be required to inquire as to the authority
of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced
by the Property Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Property
Trustee (i) may request written instructions from the
Holders of the Securities, the Administrators or the
Sponsor which instructions may
<PAGE>
29
only be given by the Holders
of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect
of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action
until such written instructions are received, and
(iii) shall be protected in conclusively relying on
or acting in or accordance with such written instructions;
(xi) if no Trust Enforcement Event has occurred and is
continuing and the Property Trustee is required
to decide between alternative causes of action,
construe ambiguous provisions in this Declaration
or is unsure of the application of any provision
of this Declaration, and the matter is not one on
which Holders of Capital Securities are entitled
under the Declaration to vote, then the Property
Trustee may, but shall be under no duty to, take
such action as is directed by the Company and, if
not so directed, shall take such action as it
deems advisable and in the best interests of the
Holders of the Securities and will have no
liability except for its own bad faith,
negligence or willful misconduct;
(xii) except as otherwise expressly provided by
this Declaration, the Property Trustee shall
not be under any obligation to take any
action that is discretionary under the
provisions of this Declaration;
(xiii) the Property Trustee shall not be liable for
any action taken, suffered or omitted to be
taken by it without negligence, in good
faith and reasonably believed by it to be
authorized or within the discretion, rights
or powers conferred upon it by this
Declaration; and
(xiv) The Property Trustee shall have a lien prior
to the Securities as to all property and
funds held by it hereunder for any amount
owing it or any predecessor Property
Trustee, except with respect to funds held
in trust for the benefit of the Holders of
Securities.
(b) No provision of this Declaration shall be deemed
to impose any duty or obligation on the Property Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Property Trustee shall
be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a
duty.
<PAGE>
30
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this
Declaration other than Section 6.2, the Delaware Trustee shall not
be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of the
Administrators or the Property Trustee described in this
Declaration. Except as set forth in Section 6.2 , the Delaware
Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust
Act.
Section 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act
or applicable law, any Administrator is authorized to execute on
behalf of the Trust any documents that the Administrators have
the power and authority to execute pursuant to Section 3.6.
provided, that the registration statements referred to in Section
3.6 3.6(b)(i), including any amendments thereto, shall be signed
by or on behalf of a majority of the Administrators.
Section 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor, and
the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the value
or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or
sufficiency of this Declaration, the Securities, the Debentures
or the Indenture.
Section 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the
provisions of Article 8 hereof.
Section 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge
with or into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
except as described in Section 3.15(b) and (c) and 8.2.
(b) The Trust may, at the request of the Sponsor, with
the consent of the Administrators or, if there are more than two,
a majority of the Administrators and without the consent of the
Holders of the Securities, the Delaware Trustee or the Property
Trustee, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties
substantially as an entirety to a trust organized as such under
the laws of any State; provided that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
<PAGE>
31
a. expressly assumes all of the obligations of the Trust
under the Securities; or
b. substitutes for the Capital Securities other
securities having substantially the same
terms as the Capital Securities (the
"Successor Securities") so long as the
Successor Securities rank the same as the
Capital Securities rank with respect to
Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of
such Successor Entity that possesses the
same powers and duties as the Property
Trustee as the holder of the Debentures;
(iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease
does not adversely affect the rights,
preferences and privileges of the Holders of
the Capital Securities (including any
Successor Securities) in any material
respect;
(iv) such Successor Entity has a purpose
substantially identical to that of the Trust;
(v) prior to such merger, consolidation,
amalgamation, replacement, conveyance,
transfer or lease the Sponsor has received
an opinion of independent counsel to the
Trust experienced in such matters to the
effect that:
a. such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders
of the Capital Securities (including any Successor
Securities)in any material respect;
b. following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the
Trust nor the Successor Entity will be required to
register as an Investment Company; and
c. following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will
continue to be classified as a grantor trust for United
States federal income tax purposes;
(vi) the Sponsor or any permitted successor or
assignee owns all of the Common Securities
and guarantees the obligations of such
<PAGE>
32
Successor Entity under the Successor
Securities at least to the extent provided
by the Guarantee; and
(vii) such Successor Entity expressly assumes all
of the obligations of the Trust with respect
to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount
of the Securities, consolidate, amalgamate, merge with or into,
or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the
Trust or Successor Entity to be classified as other than a grantor trust
for United States federal income tax purposes and each Holder of
the Securities not to be treated as owning an undivided interest
in the Debentures.
Section 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other similar judicial proceeding
relative to the Trust or any other obligor upon the Securities or
the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any
Distributions on the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Property Trustee shall have made any demand on the
Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law,
by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of
any Distributions owing and unpaid in respect of the Securities
(or, if the Securities are original issue discount Securities,
such portion of the liquidation amount as may be specified in the
terms of such Securities) and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Property Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property
Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Property Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances
of the Property Trustee, its agents and counsel, and any other
amounts due the Property Trustee.
<PAGE>
33
Nothing herein contained shall be deemed to authorize
the Property Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement adjustment or compensation affecting the Securities
or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
ARTICLE 4
SPONSOR
Section 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission one or more registration statements on the applicable
forms, including any amendments thereto, pertaining to the
Capital Securities, the Guarantee and the Debentures;
(b) to determine the States in which to take
appropriate action to qualify or register for sale all or part of
the Capital Securities and to do any and all such acts, other
than actions which must be taken by the Trust, and advise the
Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust, as
the Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States;
(c) to prepare any filing by the Trust of an
application to the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market, the New York Stock
Exchange, Inc. or any other national stock exchange or the Nasdaq
National Market for listing, if such filing is determined to be
necessary or desirable by the Sponsor;
(d) to prepare any filing by the Trust with the
Commission of a registration statement on Form 8-A, including any
amendments thereto, if such filing is determined to be necessary
or desirable by the Sponsor;
(e) to negotiate the terms of, and execute, a purchase
agreement and other related agreements providing for the sale of
the Capital Securities to the Initial Purchasers; and
(f) to negotiate the terms of the Registration Rights Agreement.
<PAGE>
34
Section 4.2 Compensation Indemnification and Expenses of the
Trustee.
The Sponsor, in its capacity as Debenture Issuer,
agrees:
(1) to pay to the Trustee from time to time such
compensation as the Debenture Issuer and the Trustee shall
from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of
this Indenture (including the compensation and the expenses
and disbursements of its agent and counsel), except any
such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Property Trustee and the Delaware
Trustee and their authorized agents for, and to hold each
of them harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes
based upon, measured by or determined by the income of any
Trustee) incurred without negligence or bad faith on the
part of the Property Trustee, the Delaware Trustee or their
respective authorized agents, as the case may be, arising
out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including
the costs and expenses of defending any of them against any
claim or liability in connection with the exercise or
performance of any of their respective powers or duties
hereunder; the provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the
Property Trustee or the termination of this Declaration.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.1 Debenture Issuer's Purchase of Common Securities.
On the Closing Date the Debenture Issuer will purchase
all of the Common Securities issued by the Trust, for an amount
at least equal to 3% of the capital of the Trust, at the same
time as the Capital Securities are sold.
Section 5.2 Covenants of the Common Securities Holder.
For so long as the Capital Securities remain
outstanding, the Common Securities Holder will covenant (i) to
maintain directly 100% ownership of the Common Securities, (ii)
to cause the Trust to remain a statutory business trust and not
to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by this Declaration, (iii) to
<PAGE>
35
use its commercially reasonable efforts to ensure that the Trust
will not be an investment company for purposes of the Investment
Company Act, and (iv) to take no action which would be reasonably
likely to cause the Trust to be classified as an association or a
publicly traded partnership taxable as a corporation for United
States federal income tax purposes.
ARTICLE 6
TRUSTEES AND ADMINISTRATORS
Section 6.1 Number of Trustees.
The number of Trustees initially shall be two (2),
and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Securities, the number
of Trustees may be increased or decreased by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities or by written consent in lieu of such meeting;
provided that the number of Trustees shall be at least two; and
provided further that (1) the Delaware Trustee, in the case of a
natural person, shall be a person who is a resident of the State
of Delaware or that, if not a natural person, is an entity which
has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law and (2) one
Trustee shall be the Property Trustee for so long as this
Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements.
Section 6.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee
(the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law,
provided that, if the Property Trustee has its
principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, then the
Property Trustee shall also be the Delaware Trustee and Section
3.11 shall have no application.
<PAGE>
36
Section 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which
shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a Person organized and doing business under the
laws of the United States of America or any
state or Territory thereof or of the District of
Columbia, or a Person permitted by the Commission
to act as an institutional trustee under
the Trust Indenture Act, authorized under such
laws to exercise corporate trust owners, having
a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state,
Territorial or District of Columbia authority.
If such Person publishes reports of condition at
least annually, pursuant to law or to the
requirements of the supervising or examining
authority referred to above, then for the
purposes of this Section 6.3(a)(ii), the
combined capital and surplus of such
corporation shall be deemed to be its
combined capital and surplus as set forth in
its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to
be eligible to so act under Section 6.3(a), the Property Trustee shall
immediately resign in the manner and with the effect set forth in
Section 6.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Property Trustee and the Holder of
the Common Securities (as if it were the Obliger referred to in
Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust
Indenture Act.
Section 6.4 Qualifications of Administrators and Delaware
Trustee Generally.
(a) Each Administrator shall be a natural person show
is at least 21 years of age; and
(b) The Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act
through one or more Authorized Officers.
<PAGE>
37
Section 6.5 Administrators.
The Administrators initially shall be:
Mary Beth Farrell, Robert Beck and David Carroll, the business
address of all of whom is c/o GreenPoint Financial Corp., Attn: Chief
Financial Officer, 90 Park Avenue, New York, New York 10016.
Section 6.6 Appointment, Removal and Resignation of Trustees and
Administrators.
(a) Subject to Section 6.6(b), Trustees and Administrators
may be appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by
vote of the Holders of a Majority in
Liquidation Amount of the Common Securities
voting as a class at a meeting of the
Holders of the Common Securities.
In no event will the Holders of the Capital Securities
have the right to vote to appoint, remove or replace the
Administrators, which voting rights are vested exclusively in the
Sponsor as the Holder of the Common Securities.
(b) The Trustee that acts as Property Trustee shall not
be removed in accordance with Section 6.6(a) until a successor
Trustee possessing the qualifications to act as Property Trustee
under Section 3.8(h)(a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the
Administrators and the Sponsor. The Trustee that acts as Delaware
Trustee shall not be removed in accordance with Section 6.6(a)
until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 6.2 and 6.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Administrators and the
Sponsor.
(c) A Trustee or Administrator appointed to office
shall hold office until his or its successor shall have been
appointed, until his death or its dissolution or until his or its
removal or resignation. Any Trustee or Administrator may resign
from office (without need for prior or subsequent accounting) by
an instrument in writing signed by the Trustee or Administrator
and delivered to the Sponsor and the Trust, which resignation
shall take effect upon such delivery or upon such later date as
is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts
as the Property Trustee shall be effective:
<PAGE>
38
a. until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed
by such Successor Property Trustee and delivered to the
Trust, the Sponsor and the resigning Property Trustee; or
b. until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
holders of the Securities; and
(ii) no such resignation of the Trustee that acts
as the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been
appointed and has accepted such appointment
by instrument executed by such Successor
Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use
their best efforts to promptly appoint a Successor Delaware
Trustee or Successor Property Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers
an instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor
Delaware Trustee, as the case may be, shall have been appointed
and accepted appointment as provided in this Section 6.6 within
60 days after delivery to the Sponsor and the Trust of an
instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may, at the
expense of the Sponsor, petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may
thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
Section 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 6.1, or
if the number of Trustees is increased pursuant to Section 6.1, a
vacancy shall occur. A resolution certifying the existence of
such vacancy by the Administrators or, if there are more than
two, a majority of the Administrators shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.6.
<PAGE>
39
Section 6.8 Effect of Vacancies.
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity
to perform the duties of an Administrator shall not operate to
dissolve, terminate or annul the Trust. Whenever a vacancy in the
number of Administrators shall occur, until such vacancy is
filled by the appointment of an Administrator in accordance with
Section 6.6, the in office, regardless of their number, shall
have Administrators all the powers granted to the Administrators
and shall discharge all the duties imposed upon the
Administrators by this Declaration.
Section 6.9 Meetings.
If there is more than one Administrator, meetings of
the Administrators shall be held from time to time upon the call
of any Administrator. Regular meetings of the Administrators may
be held at a time and place fixed by resolution of the
Administrators. Notice of any in-person meetings of the
Administrators shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Administrators shall be hand
delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than
24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an
Administrator at a meeting shall constitute a waiver of notice of
such meeting except where an Administrator attends a meeting for
the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this
Declaration, any action of the Administrators may be taken at a
meeting by vote of a majority of the Administrators present
(whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the
Administrators. In the event there is only one Administrator, any
and all action of such Administrator shall be evidenced by a
written consent of such Administrator.
Section 6.10 Delegation of Power.
(a) Any Administrator may, by power of attorney
consistent with applicable law, delegate to any natural person
over the age of 21 his, her or its power for the purpose of
executing any documents contemplated in Section 3.6, including
any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrators shall have power to delegate
from time to time to such of their number or to officers of the
Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the
Administrators or otherwise as the Administrators may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 6.11 Merger, Conversion, Consolidation or
Succession to Business.
Any Person into which the Property Trustee or the
Delaware Trustee, as the case may be, may be merged or converted
or with which either may be consolidated, or any Person resulting
from an merger, conversion or consolidation to which the Property
Trustee
<PAGE>
40
or the Delaware Trustee, as the case may be, shall be a
party, or any Person succeeding to all or substantially all the
corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the
Property Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article without the execution or filing of
any paper or any further act on the part of any of the parties
hereto.
ARTICLE 7
THE SECURITIES
Section 7.1 General Provisions Regarding Securities.
(a) The Administrators shall on behalf of the Trust
issue a class of capital securities representing undivided
beneficial ownership interests in the assets of the Trust (the
"Transfer Restricted Securities"), a class of capital securities
to be only issued in exchange for the Transfer Restricted
Securities as contemplated by the Registration Rights Agreement
(the"New Capital Securities," and together with the Transfer
Restricted Securities the "Capital Securities"), and one class of
common securities representing undivided beneficial ownership
interests in the assets of the Trust (the "Common Securities").
(i) Capital Securities. The Capital Securities of
the Trust have an aggregate liquidation amount
with respect to the assets of the Trust of
$200,000,000 and a liquidation amount with respect
to the assets of the Trust of $1,000
per Capital Security. The New Capital Security
Certificates and the Transfer Restricted Capital
Certificates evidencing the Capital Securities shall
be substantially in the form of Exhibit A to
the Declaration provided, that the New Capital
Security Certificate shall not contain any of
the provisions following the Trustee's
authentication, with such changes and additions
thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or
to conform to the rules of any stock exchange on
which the Capital Securities are listed.
(ii) Common Securities. The Common Securities of the
Trust have an aggregate liquidation amount
with respect to the assets of the Trust of
$6,185,567 and a liquidation amount with respect
to the assets of the Trust of $1,000 per Common
Security. The Common Security Certificates
evidencing the Common Securities shall be
substantially in the form of Exhibit B to the
Declaration, with such changes and additions
thereto or deletions therefrom as may be required
by ordinary usage, custom or practice.
(b) Payment of Distributions on, or the Redemption
Price of, the Capital Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation
amount of such Capital Securities and Common Securities;
provided, however,
<PAGE>
41
that if on any date on which Distributions are, or the
Redemption Price is, payable, an Indenture Event of Default shall
have occurred and be continuing, no payment of any Distribution
on, or the Redemption Price of, any of the Common Securities, and
no other payment on account of the redemption, liquidation or
other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions on all of the outstanding Capital Securities for
all distribution periods terminating on or prior thereto, or in
the case of amounts payable on redemption the full amount of the
Redemption Price for all of the outstanding Capital Securities
then called for redemption, shall have been made or provided for,
and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions on,
or the Redemption Price of, the Capital Securities then due and
payable. The Trust shall issue no securities or other interests
in the assets of the Trust other than the Capital Securities and
the Common Securities.
(c) The Certificates shall be signed on behalf of the
Trust by an Administrator. Such signature shall be the manual or
facsimile signature of any present or any future Administrator.
In case an Administrator of the Trust who shall have signed any
of the Certificates shall cease to be such Administrator before
the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person
who signed such Certificates had not ceased to be such
Administrator; and any Certificate may be signed on behalf of the
Trust by such persons who, at the actual date of execution of
such Certificate, shall be the Administrators of the Trust,
although at the date of the execution and delivery of the
Declaration any such person was not such an Administrator.
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Administrators, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the
Administrators may deem appropriate, or as may be required to
comply with any law or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to
usage.
A Certificate representing Capital Securities shall
not be valid until authenticated by the manual signature of an
authorized signatory of the Property Trustee. Such signature
shall be conclusive evidence that the Certificate has been
authenticated under this Declaration.
Upon a written order of the Trust signed by one
Administrator, the Property Trustee shall authenticate the
Certificates representing Capital Securities for original issue.
The aggregate number of Capital Securities outstanding at any
time shall not exceed the liquidation amount set forth in Section
7(a)(i).
The Property Trustee may appoint an authenticating
agent acceptable to the Trust to authenticate Certificates. An
authenticating agent may authenticate Certificates whenever the
Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee includes authentication by
such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the
Sponsor.
<PAGE>
42
(d) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the
Trust.
(e) Upon issuance of the Securities as provided in
this Declaration, the Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder
or a Capital Security Beneficial Owner in accordance with the
terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this
Declaration and the terms of the Securities, the Guarantee, the
Indenture and the Debentures.
(g) The Securities shall have no preemptive or similar rights.
Section 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive
cumulative cash Distributions at the rate per annum of 9.10% of
the stated liquidation amount of $1,000 per Security, calculated
on the basis of a 360-day year consisting of twelve 30-day
months. For any period shorter than a full 180-day semi-annual
period, distributions will be computed on the basis of the actual
number of days elapsed in such 180-day semi-annual period.
Subject to Section 7.1(b), Distributions shall be made on the
Capital Securities and the Common Securities on a Pro Rata basis.
Distributions on the Securities shall, from the date of original
issue, accrue and be cumulative and shall be payable
semi-annually only to the extent that the Trust has funds
available for the payment of such Distributions in the Property
Account. Distributions not paid on the scheduled payment date
will accumulate and compound semi-annually at the rate of 9.10%
per annum, to the extent permitted by applicable law,
("Compounded Distributions"). "Distributions" shall mean ordinary
cumulative distributions together with any Compounded
Distributions. If and to the extent that the Debenture Issuer
makes a payment of interest (including Compounded Interest (as
defined in the Indenture)), premium and/or principal on the
Debentures held by the Property Trustee (the amount of any such
payment being a "Payment Amount"), the Property Trustee shall and
is directed, to the extent funds are available for that purpose,
to make a Pro Rata distribution (a "Distribution") of the Payment
Amount to Holders, subject to the terms of Section 7.1(b).
(b) Distributions on the Securities will be
cumulative, will accrue from the date of initial issuance and
will be payable semi-annually in arrears on each June 1 and
December 1, commencing December 1, 1997, when, as and if
available for payment, by the Property Trustee, except as
otherwise described below. If Distributions are not paid when
scheduled, the accrued Distributions shall be paid to the Holders
of record of Securities as they appear on the books and records
of the Trust on the record date as determined under Section 7.2(c).
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of
the Trust on the relevant record dates, which relevant record
date shall be the 15th of the month of the relevant payment
dates. In the
<PAGE>
43
event that any date on which distributions are payable
on the Securities is not a Business Day, payment of the
distribution payable on such date will be made on the next
succeeding day which is a Business Day (without any interest or
other payment in respect of any such delay) with the same force
and effect as if made on such date.
Section 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in
part, of the Debentures, the proceeds from such repayment or
redemption shall be simultaneously applied Pro Rata (subject to
Section 7.1(b)) to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed for an amount equal to the
redemption price paid by the Debenture Issuer in respect of such
Debentures plus an amount equal to accrued and unpaid
Distributions thereon to the date of the redemption or such
lesser amount as shall be received by the Trust in respect of the
Debentures so repaid or redeemed (the "Redemption Price").
Holders will be given not less than 30 or more than 60 days
notice of such redemption.
(b) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Capital
Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be redeemed as described in Section 7.4 below.
(c) If, at any time, a Special Event shall occur and
be continuing, the Administrators may elect to, unless the
Debentures are redeemed, within 90 days following the occurrence
of such Special Event, subject to the receipt of any necessary
approval by the Federal Reserve, dissolve the Trust upon not less
than 30 nor more than 60 days' notice and, after satisfaction of
creditors, if any, cause the Debentures to be distributed to the
Holders of the Capital Securities and the Common Securities in
liquidation of the Trust.
(d) On the date fixed for any distribution of
Debentures, upon dissolution of the Trust, (i) the Capital
Securities and the Common Securities will no longer be deemed to
be outstanding and (ii) certificates representing Securities will
be deemed to represent the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and
bearing accrued and unpaid distributions equal to accrued and
unpaid distributions on, such Securities until such certificates
are presented to the Sponsor or its agent for transfer or
reissuance.
<PAGE>
44
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by
mail to each Holder of Securities to be redeemed or exchanged not
fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the
Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given
pursuant to this Section 7.4, a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Securities at the address of each
such Holder appearing in the books and records of the Trust. No
defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect
to any other Holder.
(b) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Capital
Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be redeemed as described below. The Trust may
not redeem the Securities in part unless all accrued and unpaid
interest has been paid in full on all Securities then outstanding
plus accrued but unpaid interest to the date of redemption. For
all purposes of this Declaration, unless the context otherwise
requires, all provisions relating to the redemption of Capital
Securities shall relate, in the case of any Capital Security
redeemed or to be redeemed only in part, to the portion of the
aggregate liquidation amount of Capital Securities which has been
or is to be redeemed.
(c) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this Section
7.4 (which notice will be irrevocable), then (A) by 12:00 noon,
New York City time, on the redemption date, the Property Trustee,
upon receipt of such funds, will deposit irrevocably with the DTC
(in the case of book-entry form Capital Securities) or its
nominee (or successor Clearing Agency or its nominee) funds
sufficient to pay the applicable Redemption Price with respect to
the Capital Securities and will give the DTC irrevocable
instructions and authority to pay the Redemption Price to the
Holders of the Capital Securities, and (B) with respect to
Capital Securities and Common Securities issued in definitive
form, the Property Trustee will pay the relevant Redemption Price
to the Holders of such Securities by check mailed to the address
of the relevant Holder appearing on the books and records of the
Trust on the redemption date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such
deposit, distributions will cease to accrue on the Securities so
called for redemption and all rights of Holders of such
Securities will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest
on such Redemption Price. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day falls in the next
<PAGE>
45
calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the
Guarantee, Distributions on such Securities will continue to
accrue at the then applicable rate from the original redemption
date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price. For these purposes,
the applicable Redemption Price shall not include Distributions
which are being paid to Holders who were Holders on a relevant
record date. Upon satisfaction of the foregoing conditions, then
immediately prior to the close of business on the date of such
deposit or payment, all rights of Holders of such Debentures so
called for redemption will cease, except the right of the Holders
to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for
redemption, such Debentures will not accrue distributions or bear
interest.
Neither the Administrators nor the Trust shall be
required to register or cause to be registered the transfer or
exchange of any Securities that have been called for redemption,
except in the case of any Securities being redeemed in part, any
portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law
(including, without limitation, United States Federal securities
laws), the Debenture Issuer or its subsidiaries may at any time
and from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.
Section 7.5 Voting Rights of Capital Securities.
(a) Except as provided under this Article VII and as
otherwise required by the Business Trust Act, the Trust Indenture
Act and other applicable law, the Holders of the Capital
Securities will have no voting rights.
(b) Subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in
Section 7.5(d) below, the Holders of a Majority in liquidation
amount of the Capital Securities have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or to direct the
exercise of any trust or power conferred upon the Property
Trustee under the Declaration, including the right to direct the
Property Trustee, as Holder of the Debentures, to (i) exercise
the remedies available to it under the Indenture as a Holder of
the Debentures or (ii) consent to any amendment or modification
of the Indenture or the Debentures where such consent shall be
required; provided, however, that where a consent or action under
the Indenture would require the consent or act of the Holders of
more than a majority of the aggregate liquidation amount of
Debentures affected thereby, only the Holders of the percentage
of the aggregate stated liquidation amount of the Capital
Securities which is at least equal to the percentage required
under the Indenture may direct the Property Trustee to give such
consent to take such action.
<PAGE>
46
(c) If the Property Trustee fails to enforce its
rights under the Debentures after a Holder of record of Capital
Securities has made a written request, such Holder of record of
Capital Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the
Indenture without first instituting any legal proceeding against
the Property Trustee or any other person or entity.
Notwithstanding the foregoing, if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to make any required payment when
due under the Indenture, then a Holder of Capital Securities may
directly institute a proceeding against the Debenture Issuer for
enforcement of such payment under the Indenture.
(d) The Property Trustee shall notify all Holders of
the Capital Securities of any notice of any Indenture Event of
Default received from the Debenture Issuer with respect to the
Debentures. Such notice shall state that such Indenture Event of
Default also constitutes a Trust Enforcement Event. Except with
respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clause
7.5(b)(i) and (ii) above unless the Property Trustee has obtained
an opinion of independent tax counsel to the effect that as a
result of such action, the Trust will not fail to be classified
as a grantor trust for United States Federal income tax purposes
and each Holder will be treated as owning an undivided beneficial
ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee,
as the Holder of the Debentures, is required under the Indenture
with respect to any amendment or modification of the Indenture,
the Property Trustee shall request the written direction of the
Holders of the Securities with respect to such amendment or
modification and shall vote with respect to such amendment or
modification as directed by a Majority in liquidation amount of
the Securities voting together as a single class; provided,
however, that where a consent under the Indenture would require
the consent of the Holders of more than a majority of the
aggregate principal amount of the Debentures, the Property
Trustee may only give such consent at the written direction of
the Holders of at least the same proportion in aggregate stated
Liquidation Amount of the Securities. The Property Trustee shall
not take any such action in accordance with the written
directions of the Holders of the Securities unless the Property
Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be
classified as other than a grantor trust for United States
Federal income tax purposes and each Holder will be treated as
owning an undivided beneficial ownership interest in the
Debentures.
(f) A waiver of an Indenture Event of Default with
respect to the Debentures will constitute a waiver of the
corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of
Capital Securities may be given at a separate meeting of Holders
of Capital Securities convened for such purpose, at a meeting of
all of the Holders of Securities or pursuant to written consent.
The Administrators will cause a notice of any meeting at which
Holders of Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to
<PAGE>
47
be taken, to be mailed to each Holder of record of Capital
Securities. Each such notice will include a statement setting
forth the following information: (i) the date of such meeting or
the date by which such action is to be taken; (ii) a description
of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which
written consent is sought; and (iii) instructions for the
delivery of proxies or consents.
(h) No vote or consent of the Holders of Capital
Securities will be required for the Trust to redeem and cancel
Capital Securities or distribute Debentures in accordance with
the Declaration.
(i) Notwithstanding that Holders of Capital Securities
are entitled to vote or consent under any of the circumstances
described above, any of the Securities that are owned at such
time by the Debenture Issuer or any entity directly or indirectly
controlled by, or under direct or indirect common control with,
the Debenture Issuer, shall not be entitled to vote or consent
and shall, for purposes of such vote or consent, be treated as if
such Securities were not outstanding, provided, however that
Persons otherwise eligible to vote to whom the Debenture Issuer
or any of its subsidiaries have pledged Capital Securities may
vote or consent with respect to such pledged Capital Securities
under any of the circumstances described herein.
(j) Unless an Indenture Event of Default shall have
occurred, Holders of the Capital Securities will have no rights
to appoint or remove the Trustees, who may be appointed, removed
or replaced solely by the Holders of a majority in Liquidation
Amount of Common Securities. If an Indenture Event of Default has
occurred and is continuing, the Property Trustee and the Delaware
Trustee may be removed at such time by a Majority in Liquidation
Amount of the Capital Securities.
Section 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b) or this
Section 7.6 or as otherwise required by the Business Trust Act, the
Trust Indenture Act or other applicable law or provided by the
Declaration, the Holders of the Common Securities will have no
voting rights.
(b) The Holders of the Common Securities are entitled,
in accordance with Article 5 of the Declaration, to vote to
appoint, remove or replace any Trustee or to increase or decrease
the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after all Trust Enforcement Events with respect to the Capital
Securities have been cured, waived, or otherwise eliminated and
subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in this paragraph
(c), the Holders of a Majority in Liquidation Amount of the
Common Securities have the right to direct the time, method and
place of conduction any proceeding for any remedy available to
the Property Trustee, or direct the exercise of any trust or
power conferred upon the Property Trustee under the
<PAGE>
48
Declaration, including the right to direct the Property
Trustee, as Holder of the Debentures, to (i) exercise the
remedies available to it under the Indenture as a Holder of the
Debentures, or (ii) consent to any amendment or modification of
the Indenture or the Debentures where such consent shall be
required; provided, however, that where a consent or action under
the Indenture would require the consent or act of the Holders of
more than a majority of the aggregate liquidation amount of
Debentures affected thereby, only the Holders of the percentage
of the aggregate stated liquidation amount of the Common
Securities which is at least equal to the percentage required
under the Indenture may direct the Property Trustee to have such
consent or take such action. Except with respect to directing the
time, method, and place of conducting a proceeding for a remedy,
the Property Trustee shall be under no obligation to take any of
the actions described in clause 7.6(c)(i) and (ii) above unless
the Property Trustee has obtained an opinion of independent tax
counsel to the effect that, as a result of such action, for
United States federal income tax purposes the Trust will not fail
to be classified as a grantor trust and each Holder will be
treated as owning an undivided beneficial ownership interest in
the Debentures.
(d) If the Property Trustee fails to enforce its
rights under the Debentures after a Holder of record of Common
Securities has made a written request, such Holder of record of
Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the
Debenture Issuer, as sponsor of the Trust, to enforce the
Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or
any other person or entity.
(e) A waiver of an Indenture Event of Default with
respect to the Debentures will constitute a waiver of the
corresponding Trust Enforcement Event.
(f) Any required approval or direction of Holders of
Common Securities may be given at a separate meeting of Holders
of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities or pursuant to
written consent. The Administrators will cause a notice of any
meeting at which Holders of Trust Common Securities are entitled
to vote, or of any matter on which action by written consent of
such Holders is to be taken, to be mailed to each Holder of
record of Common Securities. Each such notice will include a
statement setting forth the following information: (i) the date
of such meeting or the date by which such action is to be taken;
(ii) a description of any resolution proposed for adoption at
such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought; and (iii)
instructions for the delivery of proxies or consents.
(g) No vote or consent of the holders of the Common
Securities will be required for the Trust to redeem and cancel
Common Securities or to distribute Debentures in accordance with
the Declaration and the terms of the Securities.
Section 7.7 Paying Agent.
In the event that any Capital Securities are not in
book-entry only form, the Trust shall maintain in the Borough of
Manhattan, City of New York, State of New York, an
<PAGE>
49
office or agency where the Trust Capital Securities may
be presented for payment ("Paying Agent"). The Trust may appoint
the paying agent and may appoint one or more additional paying
agents in such other locations as it shall determine. The term
"Paying Agent" includes any additional paying agent. The Trust
may change any Paying Agent without prior notice to the Holders.
The Trust shall notify the Property Trustee of the name and
address of any Paying Agent not a party to this Declaration. If
the Trust fails to appoint or maintain another entity as Paying
Agent, the Property Trustee shall act as such. The Trust or any
of its Affiliates may act as Paying Agent. The Bank of New York
shall initially act as Paying Agent for the Capital Securities
and the Common Securities. In the event the Property Trustee
shall no longer be the Paying Agent, the Administrators shall
appoint a successor (which shall be a bank or trust company
acceptable to the Administrators and the Debenture Issuer) to act
as Paying Agent. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee
and the Debenture Issuer.
Section 7.8 Transfer of Securities.
(a) The Trust shall cause to be kept at the Corporate
Trust Office of the Property Trustee a register (the register
maintained in such office being herein sometimes referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Trust shall provide for the
registration of Capital Securities and of transfers of Capital
Securities. The Property Trustee is hereby appointed "Security
Registrar" for the purpose of registering Capital Securities and
transfers of Capital Securities as herein provided.
(b) Upon surrender for registration of transfer of any
Security at an office or agency of the Trust designated for such
purpose, the Trust shall execute, and the Property Trustee shall
authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities
of any authorized denominations and of a like aggregate principal
amount.
(c) At the option of the Holder, Securities may be
exchanged for other Securities of any authorized denominations
and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Trust shall
execute, and the Property Trustee shall authenticate and make
available for delivery, the Securities which the Holder making
the exchange is entitled to receive.
(d) Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Trust or the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Trust and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized
in writing.
(e) No service charge shall be made for any
registration of transfer or exchange of Securities, but the Trust
may require payment of a sum sufficient to cover any
<PAGE>
50
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities.
(f) If the Securities are to be redeemed in part, the
Trust shall not be required (A) to issue, register the transfer
of or exchange any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for
redemption under Section 7.4 and ending at the close of business
on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered
to the Administrators, or if the Administrators shall receive
evidence to their satisfaction of the destruction, loss or theft
of any Certificate; and
(b) there shall be delivered to the Administrators
such security or indemnity as may be required by them to keep
each of them, the Sponsor and the Trust harmless, then, in the
absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, any Administrator on behalf of the
Trust shall execute and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance
of any new Certificate under this Section 7.9, the Administrators
may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be
found at any time.
Section 7.10 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of
receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other
notice thereof.
Section 7.11 Global Securities.
If the Trust shall establish that the Capital
Securities are to be issued in the form of one or more Global
Securities, then an Administrator on behalf of the Trust shall
execute and the Property Trustee shall authenticate and deliver
one or more Global Securities
<PAGE>
51
that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the
Capital Securities to be issued in the form of Global Securities
and not yet cancelled, (ii) shall be registered in the name of
the Depositary for such Global Security or Capital Securities or
the nominee of such Depositary, and (iii) shall be delivered by
the Property Trustee to such Depositary or pursuant to such
Depositary's instructions. Global Securities shall bear a legend
substantially to the following effect:
"This Capital Security is a Global Security within the
meaning of the Declaration hereinafter referred to and is
registered in the name of a Depositary or a nominee of a
Depositary. Notwithstanding the provisions of Section 7.8 of the
Declaration, unless and until it is exchanged in whole or in part
for Capital Securities in definitive registered form, a Global
Security representing all or a part of the Capital Securities may
not be transferred in the manner provided in Section 7.8 of the
Declaration except as a whole by the Depositary to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. Every Capital Security
delivered upon registration or transfer of, or in exchange for,
or in lieu of, this Global Security shall be a Global Security
subject to the foregoing, except in the limited circumstances
described above. Unless this certificate is presented by an
authorized representative of DTC to the Trust or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment is to be made to Cede & Co. or to such
other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein."
Definitive Capital Securities issued in exchange for
all or a part of a Global Security pursuant to this Section 7.11
shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Property Trustee. Upon execution and authentication, the
Property Trustee shall deliver such definitive Capital Securities
to the persons in whose names such definitive Capital Securities
are so registered.
At such time as all interests in Global Securities
have been redeemed, repurchased or canceled, such Global
Securities shall be, upon receipt thereof, canceled by the
Property Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian.
At any time prior to such cancellation, if any interest in Global
Securities is exchanged for definitive Capital Securities,
redeemed, canceled or transferred to a transferee who receives
definitive Capital Securities therefor or any definitive Capital
Security is exchanged or transferred for part of Global
Securities, the principal amount of such Global Securities shall,
in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be reduced or
increased, as the case may be, and an endorsement shall be made
on such Global Securities by the Property Trustee or the
Custodian, at the direction of the Property Trustee, to reflect
such reduction or increase.
<PAGE>
52
The Trust and the Property Trustee may for all
purposes, including the making of payments due on the Capital
Securities, deal with the Depositary as the authorized
representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any
beneficial interest in a Global Security shall be limited to
those established by law and agreements between such owners and
depository participants or Euroclear and Cedel; provided, that no
such agreement shall give any rights to any Person against the
Trust or the Property Trustee without the written consent of the
parties so affected. Multiple requests and directions from and
votes of the Depositary as Holder of Capital Securities in global
form with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of
Capital Securities in excess of those held in the name of the
Depositary or its nominee.
If at any time the Depositary for any Capital
Securities represented by one or more Global Securities notifies
the Trust that it is unwilling or unable to continue as
Depositary for such Capital Securities or if at any time the
Depositary for such Capital Securities shall no longer be
eligible under this Section 7.11, the Trust shall appoint a
successor Depositary with respect to such Capital Securities. If
a successor Depositary for such Capital Securities is not
appointed by the Trust within 90 days after the Trust receives
such notice or becomes aware of such ineligibility, the Trust's
election that such Capital Securities be represented by one or
more Global Securities shall no longer be effective and an
Administrator on behalf of the Trust shall execute, and the
Property Trustee will authenticate and deliver Capital Securities
in definitive registered form, in any authorized denominations,
in an aggregate liquidation amount equal to the principal amount
of the Global Security or Capital Securities representing such
Capital Securities in exchange for such Global Security or
Capital Securities.
The Trust may at any time and in its sole discretion
determine that the Capital Securities issued in the form of one
or more Global Securities shall no longer be represented by a
Global Security or Capital Securities. In such event an
Administrator on behalf of the Trust shall execute, and the
Property Trustee, shall authenticate and deliver, Capital
Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the
principal amount of the Global Security or Capital Securities
representing such Capital Securities, in exchange for such Global
Security or Capital Securities.
Notwithstanding any other provisions of this
Declaration (other than the provisions set forth in Section
314(a)), Global Securities may not be transferred as a whole
except by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in Global Security may
be transferred or exchanged for definitive Capital Securities and
definitive Capital Securities may be transferred or exchange for
Global Securities in accordance with rules of the Depositary and
the provisions of Section 7.13.
<PAGE>
53
Any Capital Security in global form may be endorsed
with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this
Declaration as may be required by the Custodian, the Depositary
or by the National Association of Securities Dealers, Inc. in
order for the Capital Securities to be tradeable on the PORTAL
Market or as may be required for the Capital Securities to be
tradeable on any other market developed for trading of securities
pursuant to Rule 144A or required to comply with any applicable
law or any regulation thereunder or with Regulation S or with the
rules and regulations of any securities exchange upon which the
Capital Securities may be listed or traded or to conform with any
usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Capital
Securities are subject.
Section 7.12 Restrictive Legend.
(a) Each Global Security and definitive Capital
Security that constitutes a Restricted Security shall bear the
following legend (the "Private Placement Legend") on the face
thereof until two years after the later of the date of original
issue and the last date on which the Sponsor or any affiliate of
the Sponsor was the owner of such Capital Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date"),
unless otherwise agreed by the Trust and the Holder thereof:
"THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS
AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF THIS CAPITAL SECURITY,
BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT HAS
ACQUIRED A "RESTRICTED" SECURITY WHICH HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL NOT
OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY
PRIOR TO THE LATER OF THE DATE WHICH IS TWO YEARS AFTER THE
DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH
THE TRUST OR ANY AFFILIATE OF THE TRUST WAS THE OWNER OF
SUCH RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A)
TO THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE
<PAGE>
54
REQUIREMENTS OF RULE 144A, (D) TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (a)(1),(2),(3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E)
OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY OF THE UNITED STATES OR ANY APPLICABLE
JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS
CAPITAL SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN
(II) ABOVE, ANY OFFER, SALE OR OTHER DISPOSITION PURSUANT
TO THE FOREGOING CLAUSES (II)(E) AND (F) IS SUBJECT TO THE
RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND THE
PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE."
Any Capital Security (or security issued in exchange or
substitution therefor) as to which such restrictions on transfer
shall have expired in accordance with their terms may, upon
satisfaction of the requirements of Section 7.12(b) and surrender
of such Capital Security for exchange to the Capital Security
Registrar in accordance with the provisions of this Section
7.12(a), be exchanged for a new Capital Security or Capital
Securities, of like tenor and aggregate liquidation amount, which
shall not bear the restrictive legend required by this Section
7.12(a).
Upon any sale or transfer of any Restricted Security
(including any interest in a Global Security) (i) that is
effected pursuant to an effective registration statement under
the Securities Act or (ii) in connection with which the Property
Trustee receives certificates and other information (including an
opinion of counsel, if requested) reasonably acceptable to the
Company and the Property Trustee to the effect that such security
will no longer be subject to the resale restrictions under
federal and state securities laws, then (A) in the case of a
Restricted Security in definitive form, the Capital Security
registrar or co-registrar shall permit the holder thereof to
exchange such Restricted Security for a security that does not
bear the legend set forth in Section 314(a), and shall rescind
any such restrictions on transfer and (B) in the case of
Restricted Securities represented by a Global Security, such
Capital Security shall no longer be subject to the restrictions
contained in the legend set forth in Section 7.12(a) (but still
subject to the other provisions hereof). In addition, any Capital
Security (or security issued in exchange or substitution
therefor) as to which the restrictions on transfer described in
the legend set forth in Section 7.12(a) have expired by their
terms, may, upon surrender thereof (in accordance with the terms
of this Indenture) together with
<PAGE>
55
such certifications and other information (including an
opinion of counsel having substantial experience in practice
under the Securities Act and otherwise reasonably acceptable to
the Company, addressed to the Company and the Property Trustee
and in a form acceptable to the Company, to the effect that the
transfer of such Restricted Security has been made in compliance
with Rule 144 or such successor provision) acceptable to the
Company and the Property Trustee as either of them may reasonably
require, be exchanged for a new Capital Security or Capital
Securities of like tenor and aggregate liquidation amount, which
shall not bear the restrictive legends set forth in Section
7.12(a).
Section 7.13 Special Transfer Provisions.
(a) At any time at the request of the beneficial
holder of a Capital Security in global form, such beneficial
holder shall be entitled to obtain a definitive Capital Security
upon written request to the Property Trustee in accordance with
the standing instructions and procedures existing between the
Depositary and the Property Trustee for the issuance thereof. Any
transfer of a beneficial interest in a Capital Security in global
form which cannot be effected through book-entry settlement must
be effected by the delivery to the transferee (or its nominee) of
a definitive Capital Security or Securities registered in the
name of the transferee (or its nominee) on the books maintained
by the Security Registrar. With respect to any such transfer, the
Property Trustee will cause, in accordance with the standing
instructions and procedures existing between the Depositary and
the Property Trustee, the aggregate liquidation amount of the
Global Security to be reduced and, following such reduction, the
Property Trustee will cause Definitive Capital Securities in the
appropriate aggregate liquidation amount in the name of such
transferee (or its nominee) and bearing such restrictive legends
as may be required by this Declaration to be delivered. In
connection with any such transfer, the Property Trustee may
request such representations and agreements relating to the
restrictions on transfer of such Capital Securities from such
transferee (or such transferee's nominee) as the Property Trustee
may reasonably require.
(b) So long as the Capital Securities are eligible for
book-entry settlement, or unless otherwise required by law, upon
any transfer of a definitive Capital Security to a QIB in
accordance with Rule 144A, unless otherwise requested by the
transferor, and upon receipt of the definitive Capital Security
being so transferred, together with a certification from the
transferor that the transferor reasonably believes the transferee
is a QIB (or other evidence satisfactory to the Property
Trustee), the Property Trustee shall make an endorsement on the
Restricted Global Security to reflect an increase in the
aggregate liquidation amount of the Restricted Global Security,
and the Property Trustee shall cancel such definitive Capital
Security and cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Property
Trustees, the aggregate liquidation amount of Capital Securities
represented by the Restricted Global Security to be increased
accordingly.
(c) So long as the Capital Securities are eligible for
book-entry settlement, or unless otherwise required by law, upon
any transfer of a definitive Capital Security in accordance with
Regulation S, if requested by the transferor, and upon receipt of
the definitive Capital Security or Capital Securities being so
transferred, together with a certification from the transferor
that the transfer was made in accordance with Rule 903 or
<PAGE>
56
904 of Regulation S or Rule 144 under the Securities
Act (or other evidence satisfactory to the Property Trustee), the
Property Trustee shall make or direct the Custodian to make, an
endorsement on the Regulation S Global Security to reflect an
increase in the aggregate liquidation amount of the Capital
Securities represented by the Regulation S Global Security, the
Property Trustee shall cancel such definitive Capital Security or
Capital Securities and cause, or direct the Custodian to cause,
in accordance with the standing instructions and procedures
existing between the Depositary and the Property Trustee, the
aggregate liquidation amount of Capital Securities represented by
the Regulation S Global Security to be increased accordingly.
(d) If a holder of a beneficial interest in the
Restricted Global Security wishes at any time to exchange its
interest in the Restricted Global Security for an interest in the
Regulation S Global Security, or to transfer its interest in the
Restricted Global Security to a Person who wishes to take
delivery thereof in the form of an interest in the Regulation S
Global Security, such holder may, subject to the rules and
procedures of the Depositary and to the requirements set forth in
the following sentence, exchange or cause the exchange or
transfer or cause the transfer of such interest for an equivalent
beneficial interest in the Regulation S Global Security. Upon
receipt by the Property Trustee, as transfer agent of (1)
instructions given in accordance with the Depositary's procedures
from or on behalf of a holder of a beneficial interest in the
Restricted Global Security, directing the Property Trustee (via
DWAC), as transfer agent, to credit or cause to be credited a
beneficial interest in the Regulation S Global Security in an
amount equal to the beneficial interest in the Restricted Global
Security to be exchanged or transferred, (2) a written order
given in accordance with the Depositary's procedures containing
information regarding the Euroclear or Cedel account to be
credited with such increase and the name of such account, and (3)
a certificate given by the holder of such beneficial interest
stating that the exchange or transfer of such interest has been
made pursuant to and in accordance with Rule 903 or Rule 904 of
Regulation S or Rule 144 under the Securities Act (or other
evidence satisfactory to the Property Trustee), the Property
Trustee, as transfer agent, shall promptly deliver appropriate
instructions to the Depositary (via DWAC), its nominee, or the
custodian for the Depositary, as the case may be, to reduce or
reflect on its records a reduction of the Restricted Global
Security by the aggregate liquidation amount of the beneficial
interest in such Restricted Global Security to be so exchanged or
transferred from the relevant participant, and the Property
Trustee, as transfer agent, shall promptly deliver appropriate
instructions (via DWAC) to the Depositary, its nominee, or the
custodian for the Depositary, as the case may be, concurrently
with such reduction, to increase or reflect on its records an
increase of the liquidation amount of such Regulation S Global
Security by the aggregate liquidation amount of the beneficial
interest in such Restricted Global Security to be so exchanged or
transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions (who may be Morgan
Guaranty Trust Company of New York, Brussels office, as operator
of Euroclear or Cedel or another agent member of Euroclear or
Cedel, or both, as the case may be, acting for and on behalf of
them) a beneficial interest in such Regulation S Global Security
equal to the reduction in the liquidation amount of such
Restricted Global Security.
<PAGE>
57
(e) If a holder of a beneficial interest in the
Regulation S Global Security wishes at any time to exchange its
interest in the Regulation S Global Security for an interest in
the Restricted Global Security, or to transfer its interest in
the Regulation S Global Security to a person who wishes to take
delivery thereof in the form of an interest in the Restricted
Global Security, such holder may, subject to the rules and
procedures of Euroclear or Cedel and the Depositary, as the case
may be, and to the requirements set forth in the following
sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest
in such Restricted Global Security. Upon receipt by the Property
Trustee, as transfer agent of (l) instructions given in
accordance with the procedures of Euroclear or Cedel and the
Depositary, as the case may be, from or on behalf of a beneficial
owner of an interest in the Regulation S Global Security
directing the Property Trustee, as transfer agent, to credit or
cause to be credited a beneficial interest in the Restricted
Global Security in an amount equal to the beneficial interest in
the Regulation S Global Security to be exchanged or transferred,
(2) a written order given in accordance with the procedures of
Euroclear or Cedel and the Depositary, as the case may be,
containing information regarding the account with the Depositary
to be credited with such increase and the name of such account,
and (3) prior to the expiration of the Restricted Period, a
certificate given by the holder of such beneficial interest and
stating that the person transferring such interest in such
Regulation S Global Security reasonably believes that the person
acquiring such interest in the Restricted Global Security is a
QIB and is obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A and any applicable
securities laws of any state of the United States or any other
jurisdiction (or other evidence satisfactory to the Property
Trustee), the Property Trustee, as transfer agent, shall promptly
deliver (via DWAC) appropriate instructions to the Depositary,
its nominee, or the custodian for the Depositary, as the case may
be, to reduce or reflect on its records a reduction of the
Regulation S Global Security by the aggregate liquidation amount
of the beneficial interest in such Regulation S Global Security
to be exchanged or transferred, and the Property Trustee, as
transfer agent, shall promptly deliver (via DWAC) appropriate
instructions to the Depositary, its nominee, or the custodian for
the Depositary, as the case may be, concurrently with such
reduction, to increase or reflect on its records an increase of
the liquidation amount of the Restricted Global Security by the
aggregate liquidation amount of the beneficial interest
in the Regulation S Global Security to be so exchanged or
transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions a beneficial
interest in the Restricted Global Security equal to the reduction
in the liquidation amount of the Regulation S Global Security.
After the expiration of the Restricted Period, the certification
requirement set forth in clause (3) of the second sentence of
this Section 7.13(e) will no longer apply to such exchanges and
transfers.
(f) Any beneficial interest in one of the Global
Securities that is transferred to a person who takes delivery in
the form of an interest in the other Global Security will, upon
transfer, cease to be an interest in such Global Security and
become an interest in the other Global Security and, accordingly,
will thereafter be subject to all transfer restrictions and other
procedures applicable to beneficial interests in such other
Global Security for as long as it remains such an interest.
<PAGE>
58
(g) Prior to or on the 40th day after the later of the
commencement of the offering of the Capital Securities and the
Closing Date (the "Restricted Period"), beneficial interests in a
Regulation S Global Security may only be held through Morgan
Guaranty Trust Company of New York, Brussels office, as operator
of Euroclear or Cedel or another agent member of Euroclear and
Cedel acting for and on behalf of them, unless delivery is made
through the Restricted Global Security in accordance with the
certification requirements hereof. During the Restricted Period,
interests in the Regulation S Global Security, may be exchanged
for interests in the Restricted Global Security or for definitive
Securities only in accordance with the certification requirements
described above.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of Debenture Issuer;
(ii) the filing of a certificate of dissolution
or its equivalent with respect to the
Sponsor; the consent of the Holder of at
least a Majority in Liquidation Amount of
the Securities to the filing of a
certificate of cancellation with respect to
the Trust or the revocation of the Sponsor's
charter and the expiration of 90 days after
the date of revocation without a
reinstatement thereof;
(iii) the entry of a decree of judicial dissolution
of the Sponsor or the Trust;
(iv) the time when all of the Securities shall
have matured or been called for redemption
and the amounts then due shall have been
paid to the Holders in accordance with the
terms of the Securities;
(v) upon the election of the Administrators,
following the occurrence and continuation of
a Special Event and subject to the receipt
of any necessary approvals by the Federal
Reserve, pursuant to which the Trust shall
have been dissolved in accordance with the
terms of the Securities, and all of the
Debentures shall have been distributed to
the Holders of Securities in exchange for
all of the Securities; or
(vi) the time when all of the Administrators and
the Sponsor shall have consented to
termination of the Trust provided such
action is taken before the issuance of any
Securities.
<PAGE>
59
(b) As soon as is practicable after the occurrence of
an event referred to in Section 8.1(a) and upon completion of the
winding up of the Trust, the Trustees shall terminate by filing a
certificate of cancellation with the Secretary of State of the
State of Delaware.
(c) The provisions of Section 3.9 and Article 10 shall
survive the termination of the Trust.
Section 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary
liquidation, dissolution, winding-up or termination of the Trust
(each a "Liquidation"), the Holders of the Capital Securities on
the date of the Liquidation will be entitled to receive, out of
the assets of the Trust available for distribution to Holders of
Securities after satisfaction of the Trusts' liabilities and
creditors, distributions in cash or other immediately available
funds in an amount equal to the aggregate of the stated
liquidation amount of $1,000 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"), unless, in connection with such
Liquidation, Debentures in an aggregate stated liquidation amount
equal to the aggregate stated liquidation amount of, with an
interest rate identical to the distribution rate of, and accrued
and unpaid distributions equal to accrued and unpaid
distributions on, such Securities shall be distributed on a Pro
Rata basis to the Holders of the Securities in exchange for such
Securities.
(b) If, upon any such Liquidation, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Trust on the Securities shall be paid on a Pro Rata basis.
The Holders of the Common Securities will be entitled to receive
the Liquidation Distribution upon any such Liquidation Pro Rata
with the Holders of the Capital Securities, except that if an
Indenture Event of Default has occurred and is continuing, the
Capital Securities shall have a preference over the Common
Securities with regard to such the Liquidation Distribution.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the
return of any portion of the capital
contributions (or any return thereon) of the
Holders of the Securities which shall be
made solely from assets of the Trust; and
<PAGE>
60
(ii) shall not be required to pay to the Trust or
to any Holder of Securities any deficit upon
dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust
Act, the Holders of the Capital Securities shall be entitled to
the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this
Declaration or by law, except that a Company Indemnified Person
shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions and a Fiduciary
Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Fiduciary Indemnified Person's
negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the
Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses or any other facts pertinent
to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Declaration shall
not be liable to the Trust or to an other Covered Person for its
good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on
the Property Trustee under the Trust Indenture Act), are agreed
by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
<PAGE>
61
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein
provides that an Indemnified Person shall
act in a manner that is, or provides terms
that are, fair and reasonable to the Trust
or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest)
to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or
accepted industry practices and any applicable generally accepted
accounting practices or principles. In the absence of bad faith
by the Indemnified Person, the resolution, action or term so
made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person
shall be entitled to consider such interests
and factors as it desires, including its own
interests, and shall have no duty or
obligation to give any consideration to any
interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act
under such express standard and shall not be
subject to any other or different standard
imposed by this Declaration or by applicable
law.
Section 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the
full extent permitted by law, any Debenture Issuer Indemnified
Person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Trust) by reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or
<PAGE>
62
proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the Debenture Issuer
Indemnified Person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(ii) The Debenture Issuer shall indemnify, to the
full extent permitted by law, any Debenture Issuer Indemnified
Person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorneys' fees
and expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit
if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust and
except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Debenture Issuer
Indemnified Person shall have been adjudged to be liable to the
Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court
shall deem proper.
(iii) Any indemnification under paragraphs (i) and
(ii) of this Section 9.4(a) (unless ordered by a court) shall be made
by the Debenture Issuer only as authorized in
the specific case upon a determination that indemnification of
the Debenture Issuer Indemnified Person is proper in the
circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination
shall be made (1) by the Administrators by a majority vote of a
quorum consisting of such Administrators who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Administrators so directs, by independent legal counsel in a
written opinion, or (3) by the Common Security Holder of the
Trust.
(iv) Expenses (including attorneys' fees and
expenses) incurred by a Debenture Issuer Indemnified Person in
defending a civil, criminal, administrative or investigative
action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 9.4(a) shall be paid by the Debenture Issuer in advance of
the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Debenture Issuer Indemnified
Person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Debenture Issuer
as authorized in this Section 9.4(a) . Notwithstanding the foregoing, no
advance shall be made by the Debenture Issuer if a determination
is reasonably and promptly made (i) by the Administrators by a
majority vote of a quorum of disinterested Administrators, (ii)
if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrators so directs, by independent
legal counsel in a written opinion or (iii) the Common Security
Holder of the Trust, that, based upon the facts known to the
Administrators, counsel or the Common Security Holder at the time
such determination is made, such Debenture Issuer Indemnified
Person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best
<PAGE>
63
interests of the Trust, or, with respect to any
criminal proceeding, that such Debenture Issuer Indemnified
Person believed or had reasonable cause to believe his conduct
was unlawful. In no event shall any advance be made in instances
where the Administrators, independent legal counsel or Common
Security Holder reasonably determine that such person
deliberately breached his duty to the Trust or its Common or
Capital Security Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 9.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses
may be entitled under any agreement, vote of stockholders or
disinterested directors of the Debenture Issuer or Capital
Security Holders of the Trust or otherwise, both as to action in
his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this
Section 9.4(a) shall be deemed to be provided by a contract between the
Debenture Issuer and each Debenture Issuer Indemnified Person who
serves in such capacity at any time while this Section 9.4(a) is in
effect. Any repeal or modification of this Section 9.4(a) shall not
affect any rights or obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase
and maintain insurance on behalf of any person who is or was a
Debenture Issuer Indemnified Person against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Debenture
Issuer would have the power to indemnify him against such
liability under the provisions of this Section 9.4(a) .
(vii) For purposes of this Section 9.4(a) , references
to "the Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section
9.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its
separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 9.4(a) shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a Debenture Issuer
Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person. The obligation to
indemnify as set forth in this Section 9.4(a) shall survive the
satisfaction and discharge of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i)
Property Trustee, (ii) the Delaware Trustee, (iii) an Affiliate
of the Property Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property
Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection
<PAGE>
64
with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against
or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 9.4(a) shall
survive the satisfaction and discharge of this Declaration.
Section 9.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee
and the Property Trustee (subject to Section 6.3(b)) may engage in or
possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar
to the activities of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may
engage or be interested in any financial or other transaction
with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the
Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
Section 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust,
the Administrators shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting,
in accordance with generally accepted accounting principles. The
Trust shall use the accrual method of accounting for United
States Federal income tax purposes. The books of account and the
records of the Trust shall be examined by and reported upon as of
the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants selected by the Administrators.
<PAGE>
65
(b) The Administrators shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days
after the end of each Fiscal Year of the Trust, annual financial
statements of the Trust, including a balance sheet of the Trust
as of the end of such Fiscal Year, and the related statements of
income or loss.
(c) The Administrators shall cause to be duly prepared
and delivered to each of the Holders of Securities, an annual
United States Federal income tax information statement, required
by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Administrators
shall endeavor to deliver all such statements within 30 days
after the end of each Fiscal Year of the Trust.
(d) The Administrators shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United
States Federal income tax return, on a Form 1041 or such other
form required by United States Federal income tax law, and any
other annual income tax returns required to be filed by the
Administrators on behalf of the Trust with any state or local
taxing authority.
Section 10.3 Banking.
The Trust shall maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures
held by the Property Trustee shall be made directly to the
Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such
accounts shall be designated by the Administrators; provided,
however, that the Property Trustee shall designate the
signatories for the Property Account.
Section 10.4 Withholding.
The Trust and the Administrators shall comply with all
withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide
to the Trust, such forms or certificates as are necessary to
establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The
Administrators shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is
properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any
amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to
be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions
by the amount of such withholding.
<PAGE>
66
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration
or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed
by (i) the Administrators (or, if there are more than two
Administrators, a majority of the Administrators) and (ii) by the
Property Trustee if the amendment affects the rights, powers,
duties, obligations or immunities of the Property Trustee; and
(iii) by the Delaware Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Delaware
Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed
amendment, the Property Trustee shall have
first received an Officers' Certificate from
each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to,
the terms of this Declaration (including the
terms of the Securities);
(ii) unless, in the case of any proposed
amendment which affects the rights, powers,
duties, obligations or immunities of the
Property Trustee, the Property Trustee shall
have first received:
a. an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by,
and conforms to, the terms of this Declaration
(including the terms of the Securities); and
b. an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such
amendment is permitted by, and conforms
to, the terms of this Declaration (including
the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a
grantor trust for United States Federal income
tax purposes;
b. reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust
Indenture Act; or
c. cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
<PAGE>
67
(c) At such time after the Trust has issued any
Securities that remain outstanding, any amendment that would (i)
adversely affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Declaration or
otherwise or (ii) result in the dissolution, winding-up or
termination of the Trust other than pursuant to the terms of this
Declaration, (iii) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the
amount of any distribution required to be made in respect of the
Securities as of a specified date or (iv) restrict the right of a
Holder of Securities to institute suit for the enforcement of any
such payment on or after such date, then the holders of the
Securities voting together as a single class will be entitled to
vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of at least a
Majority in Liquidation Amount of the Securities affected
thereby; provided that, if any amendment or proposal referred to
in clause (i) above would adversely affect only the Capital
Securities or the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of a Majority in Liquidation Amount of such class of
Securities.
(d) Section 7.8 and this Section 11.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent
of the Holders of a Majority in Liquidation Amount of the Common
Securities.
(f) The rights of the Holders of the Common Securities
under Article 5 to increase or decrease the number of, and
appoint and remove Trustees shall not be amended without the
consent of the Holders of a Majority in Liquidation Amount of the
Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) to cure any ambiguity, correct or supplement
any provisions in this Declaration that may
be inconsistent with any other provision, or
to make any other provisions with respect to
matters or questions arising under this Declaration
that shall not be inconsistent with the other
provisions of this Declaration;
(ii) to modify, eliminate or add to any
provisions of this Declaration to such
extent as shall be necessary to ensure that
the Trust will be classified as a grantor
trust for United States federal income tax
purposes at all times that any Securities
are outstanding or to ensure that the Trust
will not be required to register as an
"investment company" under the Investment
Company Act; or
(iii) to conform to any change in Rule 3a-5 or
written change in interpretation or
application of Rule 3a-5 by any legislative
body, court,
<PAGE>
68
government agency or regulatory
authority which amendment does not have a
material adverse effect on the rights,
preferences or privileges of the Holders.
provided, however, that such action shall not adversely affect in
any material respect the interests of any Holder of Capital
Securities or Common Securities, and any amendments of this
Declaration shall become effective when notice thereof is given
to the Holders of Capital Securities and Common Securities.
(h) The issuance of an Administrators' Authorization
Certificate by the Administrators for purposes of establishing
the terms and form of the Securities as contemplated by Section
8.1 shall not be deemed an amendment of this Declaration subject
to the provisions of this Section 11.1.
Section 11.2 Meetings of the Holders of Securities; Action
by Written Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Administrators (or as provided
in the terms of the Securities) to consider and act on any matter
on which Holders of such class of Securities are entitled to act
under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading. The Administrators
shall call a meeting of the Holders of such class if directed to
do so by the Holders of at least 10% in Liquidation Amount of
such class of Securities. Such direction shall be given by
delivering to the Administrators one or more calls in a writing
stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which
the meeting is to be called. Any Holders of Securities calling a
meeting shall specify in writing the Certificates held by the
Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the
terms of the Securities, the following provisions shall apply to
meetings of Holders of Securities:
<PAGE>
68
(i) notice of any such meeting shall be given
to all the Holders of Securities having
a right to vote thereat at least 7 days
and not more than 60 days before the date
of such meeting. Whenever a vote, consent
or approval of the Holders of Securities
is permitted or required under this
Declaration or the rules of any stock
exchange on which the Capital Securities
are listed or admitted for trading, such vote,
consent or approval may be given at a
meeting of the Holders of Securities.
Any action that may be taken at a
meeting of the Holders of Securities
may be taken without a meeting if a
consent in writing setting forth the
action so taken is signed by the Holders of
Securities owning not less than the minimum
amount of Securities in liquidation
amount that would be necessary
to authorize or take such action at a
<PAGE>
69
meeting at which all Holders of Securities
having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a
meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing.
The Administrators may specify that any
written ballot submitted to the Security Holders
for the purpose of taking any action
without a meeting shall be returned to the Trust
within the time specified by the Administrators;
(ii) each Holder of a Security may authorize
any Person to act for it by
proxy on all matters in which a Holder
of Securities is entitled to
participate, including waiving notice
of any meeting, or voting or participating at
a meeting. No proxy shall be valid after
the expiration of 11 months from
the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities executing
such proxy. Except as otherwise provided herein,
all matters relating to the giving, voting or
validity of proxies shall be
governed by the General Corporation Law
of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as
if the Trust were a Delaware corporation
and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the
Securities shall be conducted by the
Administrators or by such other Person that
the Administrators may designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture
Act or the listing rules of any
stock exchange on which the Capital
Securities are then listed for trading,
otherwise provides, the Administrators,
in their sole discretion, shall establish all
other provisions relating to meetings of Holders
of Securities, including notice of the time,
place or purpose of any meeting at
which any matter is to be voted on by
any Holders of Securities,
waiver of any such notice, action by
consent without a meeting,
the establishment of a record date, quorum
requirements, voting in person or by proxy
or any other matter with respect to the
exercise of any such right to vote.
<PAGE>
70
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property Trustee.
The Trustee that acts as initial Property Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Property Trustee
represents and warrants to the Trust and the Sponsor at the time
of the Successor Property Trustee's acceptance of its appointment
as Property Trustee that:
(a) the Property Trustee is a corporation duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization, with
trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this
Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the
Property Trustee of this Declaration has been duly authorized by
all necessary corporate action on the part of the Property
Trustee. This Declaration has been duly executed and delivered by
the Property Trustee, and it constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and other
similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless
of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(d) the execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or
constitute a breach of the charter or the by-laws (or other
similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or
registration with or notice to, any state or federal banking
authority is required for the execution, delivery or performance
by the Property Trustee of this Declaration.
Section 12.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time
of the Successor Delaware Trustee's acceptance of its appointment
as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements
set forth in Section 6.2 and has the power and authority to execute
and deliver, and to carry out and perform its obligations under
the terms of, this Declaration and, if it is not a natural
person, is duly
<PAGE>
71
organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or
organization;
(b) the Delaware Trustee has been authorized to
perform its obligations under the Certificate of Trust and this
Declaration. This Declaration under Delaware law constitutes a
legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law); and
(c) no consent, approval or authorization of, or
registration with or notice to, any state or federal banking
authority is require for the execution, delivery or performance
by the Delaware Trustee of this Declaration.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices.
All notices provided for in this Declaration shall be
in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first-class mail, as
follows:
(a) if given to the Trust, in care of the
Administrators at the Trust's mailing address set forth below (or
such other address as the Trust may give notice of to the
Property Trustee, the Delaware Trustee and the Holders of the
Securities):
GreenPoint Capital Trust I
c/o GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
Attention: Chief Financial Officer
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as the Delaware
Trustee may give notice of to the Administrators, the Property
Trustee and the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporation Trust Department
<PAGE>
72
(c) if given to the Property Trustee, at its Corporate
Trust Office (or such other address as the Property Trustee may
give notice of to the Administrators, the Delaware Trustee and
the Holders of the Securities).
(d) if given to the Holder of the Common Securities,
at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Common Securities may give
notice of to the Property Trustee, the Delaware Trustee and the
Trust):
GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
Attention: Chief Financial Officer
(e) if given to the Administrators, at the mailing
address set forth below (or such other address as the
Administrators may give notice of to the Property Trustee,
Delaware Trustee and the Holders of Securities).
GreenPoint Capital Trust I
c/o GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
Attention: Chief Financial Officer
(f) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed or mailed by first
class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or
other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 13.2 Governing Law.
This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware.
Section 13.3 Intention of the Parties.
It is the intention of the parties hereto that the
Trust be classified for United States Federal income tax purposes
as a grantor trust. The provisions of this Declaration shall be
interpreted in a manner consistent with such classification.
<PAGE>
73
Section 13.4 Headings.
Headings contained in this Declaration are inserted
for convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
Section 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto
is named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and
assigns, whether so expressed.
Section 13.6 Partial Enforceability.
If any provision of this Declaration, or the
application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances other
than those to which it is held invalid, shall not be affected
thereby.
Section 13.7 Counterparts.
This Declaration may contain more than one counterpart
of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single
signature page.
Section 13.8 Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Declaration or in any suit against any Trustee for any
action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorney's fees and expenses, against any party
litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section 14.8 does not apply to a suit by a Trustee, a suit by a
Holder to enforce its right to payment or a suit by Holders of
more than 10% in principal amount of the then outstanding
Securities.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused these
presents to be executed as of the day and year first above
written.
GREENPOINT FINANCIAL CORP.,
as Sponsor, Debenture Issuer and Common
Securities Holder
BY:__________________________________
Name:
Title:
THE BANK OF NEW YORK
as Property Trustee
BY:__________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
BY:__________________________________
Name:
Title:
Mary Beth Farrell, as Administrator
BY:___________________________________
Robert Beck, as Administrator
BY:___________________________________
David Carroll, as Administrator
BY:___________________________________
<PAGE>
EXHIBIT A
THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND NEITHER THIS
CAPITAL SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER
OF THIS CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS,
ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT
HAS ACQUIRED A "RESTRICTED" SECURITY WHICH HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL NOT OFFER, SELL
OR OTHERWISE TRANSFER THIS CAPITAL SECURITY PRIOR TO THE LATER OF
THE DATE WHICH IS TWO YEARS AFTER THE DATE OF ORIGINAL ISSUANCE
HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY AFFILIATE OF
THE TRUST WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY
PREDECESSOR) EXCEPT (A) TO THE TRUST, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THIS CAPITAL SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1),(2),(3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, (E) OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY OF THE UNITED STATES OR ANY APPLICABLE JURISDICTION; AND
(III) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THIS CAPITAL SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (II) ABOVE, ANY OFFER, SALE OR OTHER
DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(E) AND (F) IS
SUBJECT TO THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND
THE PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
This Capital Security is a Global Certificate within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company, a New
York corporation (the "Depository"), or a nominee of the
Depository. This Capital Security is exchangeable for Capital
Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances
described
<PAGE>
2
in the Declaration and no transfer of this Capital
Security (other than a transfer of this Capital
Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Capital Security Certificate is presented
by an authorized representative of the Depository to GreenPoint
Capital Trust I or its agent for registration of transfer,
exchange or payment, and any Capital Security Certificate issued
is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depository (and
any payment hereon is made to Cede & Co. or to such other entity
as is requested by an authorized representative of the
Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
Certificate No. 1 Number of Capital Securities: 200,000
CUSIP No. 39538P AA 1
Certificate Evidencing Capital Securities
of
GreenPoint Capital Trust I
9.10% Subordinated Capital Income Securities
(liquidation amount $1,000 per Capital Security)
GREENPOINT CAPITAL TRUST I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Cede & Co. (the "Holder") is the registered
owner of 200,000 capital securities of the Trust representing
undivided beneficial ownership interests in the assets of the
Trust designated the 9.10% Subordinated Capital Income Securities
(liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in the Declaration (as
defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of June 3, 1997 (as
the same may be amended from time to time (the "Declaration"),
among GreenPoint Financial Corp., as Sponsor (the "Company"),
Mary Beth Farrell, Robert Beck and David Carroll, as
Administrators, The Bank of New York, as Property Trustee, and
The Bank of New York (Delaware), as Delaware Trustee, and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Guarantee to the extent
described therein. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to a Holder without
charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Capital Securities as evidence of undivided
indirect beneficial ownership interests in the Debentures.
<PAGE>
3
This Capital Security shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
<PAGE>
4
IN WITNESS WHEREOF, the Trust has executed this
certificate.
GREENPOINT CAPITAL TRUST I
By:____________________________
Name:
Title: Administrator
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Declaration.
The Bank of New York
By:_____________________________
Authorized Signatory
Dated:
<PAGE>
5
In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date
of the declaration by the Commission of the effectiveness of a
registration statement under the Securities Act covering resales
of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) two
years after the later of the date of original issue and the last
date on which the Company or any affiliate of the Company was the
owner of such Capital Securities (or any predecessor thereto)
(the "Resale Restriction Termination Date"), the undersigned
confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer:
[Check One]
---------
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(3) ___ to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act of 1933, as amended) that has furnished to the Trustee a
signed letter containing certain representations and agreements
(the form of which letter can be obtained from the Trustee); or
(4) ___ outside the United States to a "foreign
person" in compliance with Rule 904 of Regulation
S under the Securities Act of 1933, as amended;
or
(5) ___ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(6) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(7) ___ pursuant to another available exemption from
the registration requirements of the Securities
Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in
the name of any person other than the registered Holder thereof;
provided, however, that if box (3), (4), (5) or (7) is checked,
the Company or the Trustee may require, prior to registering any
such transfer of the Securities, in its sole discretion, such
written legal opinions, certifications (including an investment
letter in the case of box (3) or (4)) and other information as
the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements
of the Securities Act of 1933, as amended.
<PAGE>
6
If none of the foregoing boxes is checked, the Trustee or
Registrar shall not be obligated to register this Security in the
name of any person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth
herein and in Section 315 of the Indenture shall have been
satisfied.
Dated: __________________ Signed:_________________________________________
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with
respect to which it exercises sole investment discretion and that
it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is
aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ________ _______________________________________________
NOTICE: To be executed by an executive officer
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing the Capital Security outside the United States as a
"foreign person" in compliance with Rule 904 of Regulation S
under the Securities Act and is aware that the sale to it is
being made in reliance on Regulation S and acknowledges that a
holder of an interest in a Regulation S temporary global security
may not (i) receive the payment of any distributions, redemption
price or any other payments with respect to the holder's
beneficial interest in the temporary global security or (ii)
receive an interest in a Regulation S permanent global security
until (A) expiration of the 40th day after the later of the
commencement of the offering of the Capital Securities and the
closing date and (B) certification that the beneficial owner of
the interest in the Capital Security is a non-U.S. person.
Dated: ________ _______________________________________________
NOTICE: To be executed by an executive officer
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate No. 1 Number of Common Securities: 6194.363
Certificate Evidencing Common Securities
of
GreenPoint Capital Trust I
Common Securities
(liquidation amount $1,000 per Common Security)
GreenPoint Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that GreenPoint Financial Corp. (the "Holder")
is the registered owner of common securities of the Trust
representing an undivided beneficial ownership interest in the
assets of the Trust designated the 9.10% Common Securities
(liquidation amount $1,000 per Common Security) (the "Common
Securities"). The Common Securities are not transferable and any
attempted transfer thereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued
and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust, dated as
of June 3, 1997 (as the same may be amended from time to time,
the "Declaration"), among GreenPoint Financial Corp., as Sponsor,
Mary Beth Farrell, Robert Beck and David Carroll as
Administrators, The Bank of New York, as Property Trustee and The
Bank of New York (Delaware), as Delaware Trustee, and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust. The Holder is entitled to the benefits
of the Guarantee to the extent described therein. Capitalized
terms used herein but not defined shall have the meaning given
them in the Declaration. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to a Holder without
charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of an
undivided indirect beneficial ownership interest in the
Debentures.
This Common Security shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
<PAGE>
2
IN WITNESS WHEREOF, the Trust has executed this
certificate this 3rd day of June, 1997.
GREENPOINT CAPITAL TRUST I
By:_______________________________
Name:
Title: Administrator
THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND NEITHER THIS
CAPITAL SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER
OF THIS CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS,
ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT
HAS ACQUIRED A "RESTRICTED" SECURITY WHICH HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL NOT OFFER, SELL
OR OTHERWISE TRANSFER THIS CAPITAL SECURITY PRIOR TO THE LATER OF
THE DATE WHICH IS TWO YEARS AFTER THE DATE OF ORIGINAL ISSUANCE
HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY AFFILIATE OF
THE TRUST WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY
PREDECESSOR) EXCEPT (A) TO THE TRUST, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THIS CAPITAL SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1),(2),(3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, (E) OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY OF THE UNITED STATES OR ANY APPLICABLE JURISDICTION; AND
(III) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THIS CAPITAL SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (II) ABOVE, ANY OFFER, SALE OR OTHER
DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(E) AND (F) IS
SUBJECT TO THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND
THE PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
This Capital Security is a Global Certificate within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company, a New
York corporation (the "Depository"), or a nominee of the
Depository.
<PAGE>
2
This Capital Security is exchangeable for Capital
Securities registered in the name of a person
other than the Depository or its nominee only in the limited
circumstances described in the Declaration and no transfer of
this Capital Security (other than a transfer of this Capital
Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Capital Security Certificate is presented
by an authorized representative of the Depository to GreenPoint
Capital Trust I or its agent for registration of transfer,
exchange or payment, and any Capital Security Certificate issued
is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depository (and
any payment hereon is made to Cede & Co. or to such other entity
as is requested by an authorized representative of the
Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
Certificate No. 1 Number of Capital Securities: 200,000
CUSIP No. 39538P AA 1
Certificate Evidencing Capital Securities
of
GreenPoint Capital Trust I
9.10% Subordinated Capital Income Securities
(liquidation amount $1,000 per Capital Security)
GREENPOINT CAPITAL TRUST I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Cede & Co. (the "Holder") is the registered
owner of 200,000 capital securities of the Trust representing
undivided beneficial ownership interests in the assets of the
Trust designated the 9.10% Subordinated Capital Income Securities
(liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in the Declaration (as
defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of June 3, 1997 (as
the same may be amended from time to time (the "Declaration"),
among GreenPoint Financial Corp., as Sponsor (the "Company"),
Mary Beth Farrell, Robert Beck and David Carroll, as
Administrators, The Bank of New York, as Property Trustee, and
The Bank of New York (Delaware), as Delaware Trustee, and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Guarantee to the extent
described therein. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to a Holder without
charge upon written request to the Sponsor at its principal place
of business.
<PAGE>
3
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Capital Securities as evidence of undivided
indirect beneficial ownership interests in the Debentures.
This Capital Security shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
<PAGE>
4
IN WITNESS WHEREOF, the Trust has executed this
certificate.
GREENPOINT CAPITAL TRUST I
By:_______________________
Name:
Title: Administrator
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Declaration.
The Bank of New York
By:___________________________
Authorized Signatory
Dated:
<PAGE>
5
In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date
of the declaration by the Commission of the effectiveness of a
registration statement under the Securities Act covering resales
of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) two
years after the later of the date of original issue and the last
date on which the Company or any affiliate of the Company was the
owner of such Capital Securities (or any predecessor thereto)
(the "Resale Restriction Termination Date"), the undersigned
confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer:
[Check One]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(3) ___ to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended) that has
furnished to the Trustee a signed letter containing
certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) ___ outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act of 1933, as amended; or
(5) ___ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act of 1933, as
amended; or
(6) ___ pursuant to an effective registration statement under
the Securities Act of 1933, as amended; or
(7) ___ pursuant to another available exemption from the
registration requirements of the Securities Act of
1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in
the name of any person other than the registered Holder thereof;
provided, however, that if box (3), (4), (5) or (7) is checked,
the Company or the Trustee may require, prior to registering any
such transfer of the Securities, in its sole discretion, such
written legal opinions, certifications (including an investment
letter in the case of box (3) or (4)) and other information as
the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements
of the Securities Act of 1933, as amended.
<PAGE>
6
If none of the foregoing boxes is checked, the Trustee or
Registrar shall not be obligated to register this Security in the
name of any person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth
herein and in Section 315 of the Indenture shall have been
satisfied.
Dated: __________________ Signed:______________________________
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee:____________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with
respect to which it exercises sole investment discretion and that
it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is
aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ________ ____________________________________
NOTICE: To be executed by an
executive officer
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing the Capital Security outside the United States as a
"foreign person" in compliance with Rule 904 of Regulation S
under the Securities Act and is aware that the sale to it is
being made in reliance on Regulation S and acknowledges that a
holder of an interest in a Regulation S temporary global security
may not (i) receive the payment of any distributions, redemption
price or any other payments with respect to the holder's
beneficial interest in the temporary global security or (ii)
receive an interest in a Regulation S permanent global security
until (A) expiration of the 40th day after the later of the
commencement of the offering of the Capital Securities and the
closing date and (B) certification that the beneficial owner of
the interest in the Capital Security is a non-U.S. person.
Dated: ________ ____________________________________
NOTICE: To be executed by an
executive officer
<PAGE>
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate No. 1 Number of Common Securities: 6194.363
Certificate Evidencing Common Securities
of
GreenPoint Capital Trust I
Common Securities
(liquidation amount $1,000 per Common Security)
GreenPoint Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that GreenPoint Financial Corp. (the "Holder")
is the registered owner of common securities of the Trust
representing an undivided beneficial ownership interest in the
assets of the Trust designated the 9.10% Common Securities
(liquidation amount $1,000 per Common Security) (the "Common
Securities"). The Common Securities are not transferable and any
attempted transfer thereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued
and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust, dated as
of June 3, 1997 (as the same may be amended from time to time,
the "Declaration"), among GreenPoint Financial Corp., as Sponsor,
Mary Beth Farrell, Robert Beck and David Carroll as
Administrators, The Bank of New York, as Property Trustee and The
Bank of New York (Delaware), as Delaware Trustee, and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust. The Holder is entitled to the benefits
of the Guarantee to the extent described therein. Capitalized
terms used herein but not defined shall have the meaning given
them in the Declaration. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to a Holder without
charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of an
undivided indirect beneficial ownership interest in the
Debentures.
This Common Security shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
<PAGE>
2
IN WITNESS WHEREOF, the Trust has executed this
certificate this 3rd day of June, 1997.
GREENPOINT CAPITAL TRUST I
By:__________________________
Name:
Title: Administrator
- -----------------------------------------------------------------
GUARANTEE AGREEMENT
GREENPOINT CAPITAL TRUST I
Dated as of ________, 1997
- -----------------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE*
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
310(a) .......................................... 4.1(a)
310(b) .......................................... 4.1(c)
310(c) .......................................... Inapplicable
311(a) .......................................... 2.2(b)
311(b) .......................................... 2.2(b)
31I(c) .......................................... Inapplicable
312(a) .......................................... 2.2(a)
312(b) .......................................... 2.2(b)
312(c) .......................................... 2.9
313(a) .......................................... 2.3
313(b) .......................................... 2.3
313(c) .......................................... 2.3
313(d) .......................................... 2.3
314(a) .......................................... 2.4
314(b) .......................................... Inapplicable
314(c) .......................................... 2.5
314(d) .......................................... Inapplicable
314(e) .......................................... 2.5
314(f) .......................................... Inapplicable
315(a) .......................................... 3.1(d); 3.2(a)
315(b) .......................................... 2.7(a)
315(c) .......................................... 3.1(c)
315(d) .......................................... 3.1(d)
316(a) .......................................... 2.6; 5.4(a)
317(a) .......................................... 2.10; 5.4
318(a) .......................................... 2.1(c)
- --------
* This Cross-Reference Table does not constitute part of the
Agreement and shall not have any bearing upon the interpretation
of any of its terms or provisions.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS2
SECTION 1.1 Interpretation and Definitions ...................2
ARTICLE 2
TRUST INDENTURE ACT......................5
SECTION 2.1 Trust Indenture Act; Application5
SECTION 2.2 Lists of Holders of Capital Securities...........5
SECTION 2.3 Reports by Guarantee Trustee ....................6
SECTION 2.4 Periodic Reports to Guarantee Trustee ...........6
SECTION 2.5 Evidence of Compliance with Conditions
Precedent ....................................6
SECTION 2.6 Guarantee Event of Default; Waive ...............6
SECTION 2.7 Guarantee Event of Default; Notice ..............6
SECTION 2.8 Conflicting Interests ...........................7
SECTION 2.9 Disclosure of Information .......................7
SECTION 2.10 Guarantee Trustee May File Proofs of Claim.......7
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.......7
SECTION 3.1 Powers and Duties of Guarantee Trustee ..........7
SECTION 3.2 Certain Rights of Guarantee Trustee .............9
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee ................................11
ARTICLE 4
GUARANTEE TRUSTEE......................11
SECTION 4.1 Guarantee Trustee; Eligibility ..................11
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustee ...........................12
<PAGE>
ARTICLE 5
GUARANTEE...........................13
SECTION 5.1 Guarantee ......................................13
SECTION 5.2 Waiver of Notice and Demand ....................13
SECTION 5.3 Obligations Not Affected .......................13
SECTION 5.4 Rights of Holders ..............................14
SECTION 5.5 Guarantee of Payment ...........................15
SECTION 5.6 Subrogation ....................................15
SECTION 5.7 Independent Obligations ........................15
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION..........15
SECTION 6.1 Limitation of Transactions .....................16
SECTION 6.2 Ranking ........................................16
ARTICLE 7
TERMINATION.........................16
SECTION 7.1 Termination ....................................17
ARTICLE 8
INDEMNIFICATION.......................17
SECTION 8.1 Exculpation ....................................17
SECTION 8.2 Indemnification ................................17
ARTICLE 9
MISCELLANEOUS........................18
SECTION 9.1 Successors and Assigns .........................18
SECTION 9.2 Amendments .....................................18
SECTION 9.3 Notices ........................................18
SECTION 9.4 Benefit ........................................19
SECTION 9.5 Governing Law ..................................19
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as
of _________, 1997, is executed and delivered by GreenPoint
Financial Corp., a Delaware corporation (the "Guarantor"), and
The Bank of New York, a New York banking corporation, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as
defined herein) of the Capital Securities (as defined herein) of
GreenPoint Capital Trust I, a Delaware statutory business trust
(the "Trust").
W I T N E S S E T H:
WHEREAS, pursuant to the Declaration (as defined
herein), the Trust issued on June 3, 1997 $200,000,000 aggregate
liquidation amount of capital securities, having a liquidation
amount of $1,000 per capital security, designated the 9.10%
Subordinated Capital Income Securities (the "Old Capital
Securities") and 6194.363 common securities, having a liquidation
amount of $1,000 per common security, designated the 9.10% Common
Securities (the "Common Securities"; together with the Old
Capital Securities, the "Securities");
WHEREAS, as incentive for the holders of the
Securities to purchase the Securities, the Guarantor irrevocably
and unconditionally agreed, to the extent set forth in the
Guarantee Agreement dated as of June 3, 1997 (the "Old
Guarantee"), to pay to the holders of the Securities the
Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, pursuant to the Registration Rights Agreement
(as defined in the Declaration), the Trust has offered to
exchange up to $200,000,000 aggregate liquidation amount of 9.10%
Subordinated Capital Income Securities (the "New Capital
Securities" and, together with the Old Capital Securities, the
"Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act") for a
like liquidation amount of its outstanding Old Capital Securities
(the "Exchange Offer");
WHEREAS, pursuant to the Exchange Offer, the Guarantor
and the Guarantee Trustee wish to exchange the Old Guarantee with
respect to the Old Capital Securities for this Guarantee, which
is substantially the same as the Old Guarantee, except that it
has been registered under the Securities Act and qualified under
the Trust Indenture Act and which is for the benefit of the
Holders of New Capital Securities and Old Capital Securities not
exchanged for New Capital Securities; and
WHEREAS, as incentive for the Holders to retain the
Capital Securities (which the Guarantor agrees will benefit it),
the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Guarantee, to pay to the Holders
of the Capital Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and
conditions set forth herein.
<PAGE>
2
NOW, THEREFORE, in consideration of the foregoing
premises, the Guarantor executes and delivers this Guarantee for
the benefit of the Holders of Capital Securities.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. In this
Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Guarantee has the
same meaning throughout;
(c) all references to "the Guarantee" or "this
Guarantee" are to this Guarantee as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee to Articles and
Sections are to Articles and Sections of this Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee, unless otherwise
defined in this Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural
and vice versa and a reference to the masculine includes,
as applicable, the feminine.
"Affiliate" has the same meaning as given to that term
in Rule 405 of the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Business Day" has the meaning given to such term in
the Indenture.
"Corporate Trust Office" means the office of the
Guarantee Trustee at which the corporate trust business of the
Guarantee Trustee shall at any particular time, be principally
administered, which office at the date of execution of this
Guarantee is located at The Bank of New York, 101 Barclay Street,
Floor 21W, New York, New York 10286, Attention: Corporate Trust
Trustee Administration.
"Covered Person" means any Holder or beneficial owner
of Capital Securities.
<PAGE>
3
"Debentures" means the series of subordinated deferrable
interest debentures to be issued by the Guarantor, designated the
9.10% Junior Subordinated Debentures due 2027 held by the
Property Trustee (as defined in the Declaration) of the Trust.
"Declaration" means the Amended and Restated
Declaration of Trust, dated as of June 3, 1997, as amended,
modified or supplemented from time to time, among the trustees of
the Trust named therein, the Guarantor, as sponsor, and the
holders from time to time of undivided beneficial ownership
interests in the assets of the Trust.
"Guarantee Event of Default" means a default by the
Guarantor on any of its payment or other obligations under this
Guarantee.
"Guarantee Trustee" means The Bank of New York, until
a successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee and
thereafter means each such Successor Guarantee Trustee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital
Securities, to the extent not paid or made by the Trust: (i) any
accumulated and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Capital
Securities to the extent the Trust shall have sufficient funds
available therefor at the time, (ii) the Redemption Price (as
defined in the Declaration) with respect to any Capital
Securities called for redemption by the Trust, to the extent the
Trust shall have sufficient funds available therefor at the time,
and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Trust (other than in connection with the
distribution of Debentures to the Holders in exchange for Capital
Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Capital Securities to the date of payment,
and (b) the amount of assets of the Trust remaining available for
distribution to Holders in liquidation of the Trust (in either
case, the "Liquidation Distribution"). If a Trust Enforcement
Event (as defined in the Declaration) has occurred and is
continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under this Guarantee are subordinated
to the rights of Holders of the Capital Securities to receive
payments hereunder.
"Holder" shall mean any holder of Capital Securities,
as registered on the books and records of the Trust; provided,
however, that, in determining whether the Holders of the
requisite percentage of Capital Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor or any
other obligor on the Capital Securities; and provided further,
that in determining whether the Holders of the requisite
liquidation amount of Capital Securities have voted on any matter
provided for in this Guarantee, then for the purpose of such
determination only (and not for any other purpose hereunder), if
the Capital Securities remain in the form of one or more Global
Certificates (as defined in the Declaration), the term "Holders"
shall mean the holder of the Global Certificate acting at the
direction of the Preferred Security Beneficial Owners (as defined
in the Declaration).
<PAGE>
4
"Indemnified Person " means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, and any officers, directors,
shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of June 3,
1997, among the Guarantor (the "Company") and The Bank of New
York, as trustee, and any indenture supplemental thereto pursuant
to which the Debentures are to be issued to the Property Trustee
(as defined in the Declaration) of the Trust.
"Majority in Liquidation Amount of the Capital
Securities" means, except as provided in the terms of the Capital
Securities or by the Trust Indenture Act, Holder(s) of
outstanding Capital Securities, voting separately as a class, who
are the record holders of more than 50% of the aggregate
liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Capital
Securities. In determining whether the Holders of the requisite
amount of Capital Securities have voted, Capital Securities which
are owned by the Guarantor or any Affiliate of the Guarantor
shall be disregarded for the purpose of any such determination.
"Officers' Certificate" means, with respect to any
Person, a certificate signed on behalf of such Person by two
Authorized Officers (as defined in the Declaration) of such
Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on
behalf of such Person in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer on behalf of
such Person to express an informed opinion as to whether
or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each
such officer acting on behalf of such Person, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
<PAGE>
5
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the
Guarantee Trustee, including any vice president, any assistant
vice president, any assistant secretary, any assistant treasurer
or other officer of the Corporate Trust Office of the Guarantee
Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. (a) This
Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and shall, to the
extent applicable, be governed by such provisions.
(b) This Guarantee has been qualified under the Trust
Indenture Act; and
(b) If and to the extent that any provision of this
Guarantee limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 2.2 Lists of Holders of Capital Securities.
(a) The Guarantor shall provide the Guarantee Trustee with a
list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Capital
Securities ("List of Holders"), (i) semi-annually, not later than
June 15 and December 15 of each year and current as of such date,
and (ii) at such other times as the Guarantee Trustee may request
in writing, within 30 days of receipt by the Guarantor of a
written request from the Guarantee Trustee for a List of Holders
as of a date no more than 15 days before such List of Holders is
given to the Guarantee Trustee; excluding from any such list
names and addresses received by the Guarantee Trustee in its
capacity as Security Registrar (as defined in the Indenture). The
Guarantee Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of
Holders given to it, provided that it may destroy any List of
Holders previously given to it on receipt of a new List of
Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
<PAGE>
6
SECTION 2.3 Reports by Guarantee Trustee. Within 60
days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Capital Securities), the
Guarantee Trustee shall provide to the Holders of the Securities
such reports as are required by Section 313 of the Trust
Indenture Act (if any) in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) of
the Trust Indenture Act and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the
manner and at the times required by Section 314 of the Trust
Indenture Act. Delivery of such reports, information and
documents to the Guarantee Trustee is for informational purposes
only and the Guarantee Trustee's receipt of such shall not
constitute constructive notice of any information contained
therein or determinable from information contained therein,
including the Guarantor's compliance with any of its covenants
hereunder (as to which the Guarantee Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with any conditions precedent, if
any, provided for in this Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6 Guarantee Event of Default; Waiver. The
Holders of a Majority in Liquidation Amount of the Capital
Securities may, by vote or written consent, on behalf of the
Holders of all of the Capital Securities, waive any past
Guarantee Event of Default and its consequences. Upon such
waiver, any such Guarantee Event of Default shall cease to exist,
and any Guarantee Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee,
but no such waiver shall extend to any subsequent or other
default or Guarantee Event of Default or impair any right
consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice. (a)
The Guarantee Trustee shall, within 90 days after the occurrence
of a Guarantee Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Capital Securities,
notices of all Guarantee Events of Default actually known to a
Responsible Officer of the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice;
provided, that the Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer
of the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of
the Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Guarantee Event of Default unless the Guarantee
Trustee shall have received written notice thereof or a
<PAGE>
7
Responsible Officer of the Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual
knowledge thereof.
SECTION 2.8 Conflicting Interests. The Declaration
shall be deemed to be specifically described in this Guarantee
for the purposes of clause (i) of the first provision contained
in Section 310(b) of the Trust Indenture Act.
SECTION 2.9 Disclosure of Information. The disclosure
of information as to the names and addresses of the Holders of
the Capital Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of
any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Guarantee Trustee be held accountable by reason of
mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
SECTION 2.10 Guarantee Trustee May File Proofs of
Claim. Upon the occurrence of a Guarantee Event of Default, the
Guarantee Trustee is hereby authorized to (a) recover judgment,
in its own name and as trustee of an express trust, against the
Guarantor for the whole amount of any Guarantee Payments
remaining unpaid and (b) file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have its claims and those of the Holders of the Capital
Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS
OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee.
(a) This Guarantee shall be held by the Guarantee
Trustee on behalf of the Trust for the benefit of the Holders of
the Capital Securities, and the Guarantee Trustee shall not
transfer this Guarantee to any Person except a Holder of Capital
Securities exercising his or her rights pursuant to Section
5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to
a Responsible Officer of the Guarantee Trustee has occurred and
is continuing, the Guarantee Trustee shall enforce this Guarantee
for the benefit of the Holders of the Capital Securities.
<PAGE>
8
(c) The Guarantee Trustee, before the occurrence of
any Guarantee Event of Default and after the curing of all
Guarantee Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set
forth in this Guarantee, and no implied covenants shall be read
into this Guarantee against the Guarantee Trustee. In case a
Guarantee Event of Default has occurred (that has not been cured
or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee
Trustee shall exercise such of the rights and powers vested in it
by this Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed
to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Guarantee
Event of Default and after the curing or waiving of
all such Guarantee Events of Default that may have
occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee, and the
Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as
are specifically set forth in this Guarantee, and
no implied covenants or obligations shall be read
into this Guarantee against the Guarantee
Trustee; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee;
but in the case of any such certificates or
opinions that by any provision hereof are
specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Guarantee;
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless
it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be
taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority
in Liquidation Amount of the Capital Securities
relating to the time, method and place of conducting
<PAGE>
9
any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no provision of this Guarantee shall require
the Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee or
indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining
from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) Any direction or act of the Guarantor
contemplated by this Guarantee shall be sufficiently
evidenced by an Officers' Certificate;
(iii) Whenever, in the administration of this
Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established
before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (or any rerecording, refiling or
registration thereof);
(v) The Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion
of such counsel with respect to legal matters shall
be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee from any court of
competent jurisdiction;
<PAGE>
10
(vi) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Guarantee at the request or
direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the
Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the
expenses of the Guarantee Trustee's agents, nominees
or custodians) and liabilities that might be incurred
by it in complying with such request or direction,
including such reasonable advances as may be
requested by the Guarantee Trustee; provided, that
nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Guarantee Trustee, upon the
occurrence of a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested
in it by this Guarantee;
(vii) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may
see fit;
(viii) The Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Guarantee
Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or
its agents hereunder shall bind the Holders of the
Capital Securities, and the signature of the
Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action.
No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions
of this Guarantee, both of which shall be
conclusively evidenced by the Guarantee Trustee's or
its agent's taking such action; and
(x) Whenever in the administration of this
Guarantee the Guarantee Trustee shall deem it
desirable to receive written instructions with
respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (i)
may request written instructions from the Holders of
a Majority in Liquidation Amount of the Capital
Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such written
instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with
such instructions.
(b) No provision of this Guarantee shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation
<PAGE>
11
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a
duty.
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee. The recitals contained in this Guarantee shall be
taken as the statements of the Guarantor, and the Guarantee
Trustee does not assume any responsibility for their correctness.
The Guarantee Trustee makes no representations as to the validity
or sufficiency of this Guarantee.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
(a) There shall be at all times a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to
above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
<PAGE>
12
SECTION 4.2 Appointment, Removal and Resignation
of Guarantee Trustee.
(a) Subject to Section 4.1(b), the Guarantee Trustee
may be appointed or removed with or without cause at any time
by the Guarantor.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold such office until a Successor Guarantee Trustee shall have
been appointed or until its removal or resignation. The
Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such
Successor Guarantee Trustee and delivered to the Guarantor and
the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.2 within 30 days after delivery to the Guarantee Trustee or
Guarantor, as the case may be, of an instrument of removal or
resignation, the removed or resigning Guarantee Trustee may
petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or
resignation of the Guarantee Trustee pursuant to this Section
4.2, the Guarantor shall pay to the Guarantee Trustee all
amounts owing for fees and reimbursement of expenses which have
accrued to the date of such termination, removal or
resignation.
(g) The Guarantor shall promptly notify the Holders
of the resignation, removal or appointment of the Guarantor.
<PAGE>
13
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees
to pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Trust), as and
when due, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders
or by causing the Trust to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of
this Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to (i)
extend the interest payment period on the Debentures and the
Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extended Interest Payment Period (as defined
in the Indenture) with respect to the Distributions (as defined
in the Declaration) on the Securities, and (ii) change the
maturity date of the Debentures to the extent permitted by the
Indenture.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of
the Guarantor under this Guarantee shall be absolute and
unconditional and shall remain in full force and effect until the
entire liquidation amount of all outstanding Capital Securities
shall have been paid and such obligation shall in no way be
affected or impaired by reason of the happening from time to time
of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or
otherwise, of the performance or observance by the Trust of
any express or implied agreement, covenant, term or
condition relating to the Capital Securities to be
performed or observed by the Trust;
(b) The extension of time for the payment by the
Trust of all or any portion of the Distributions, Redemp-
tion Price (as defined in the Indenture), Liquidation
Distribution or any other sums payable under the terms of
the Capital Securities or the extension of time for the
performance of any other obligation under, arising out of,
or in connection with the Capital Securities (other than an
extension of time for payment of Distributions, Redemption
Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period
on the Debentures or any change to the maturity date of the
Debentures permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence
on the part of the Property Trustee or the Holders to
enforce, assert or exercise any right, privilege, power or
remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Capital Securities, or any
action on the part of the Trust granting indulgence or
extension of any kind;
<PAGE>
14
(d) The voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust;
(e) Any invalidity of, or defect or deficiency in,
the Capital Securities;
(f) The settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) Any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this Section
5.3 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Guarantee Trustee
or the Holders to give notice to, or obtain consent of the
Guarantor or any other Person with respect to the happening of
any of the foregoing.
No setoff, counterclaim, reduction or diminution of any
obligation, or any defense of any kind or nature that the
Guarantor has or may have against any Holder shall be available
hereunder to the Guarantor against such Holder to reduce the
payments to it under this Guarantee.
SECTION 5.4 Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of
the Capital Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this
Guarantee, then any Holder of Capital Securities may, subject to
the subordination provisions of Section 6.2, institute a legal
proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee without first
instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder of Capital Securities may, subject to the
subordination provisions of Section 6.2, directly institute a
proceeding against the Guarantor for enforcement of the Guarantee
for such payment to the Holder of the Capital Securities of the
principal of or interest on the Debentures on or after the
respective due dates specified in the Debentures, and the amount
of the payment will be based on the Holder's pro rata share of
the amount due and owing on all of the Capital Securities. The
Guarantor hereby waives any right or remedy to require that any
action on this Guarantee be brought first against the Trust or
any other person or entity before proceeding directly against the
Guarantor.
<PAGE>
15
SECTION 5.5 Guarantee of Payment.
This Guarantee creates a guarantee of payment and not
of collection.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any)
rights of the Holders of Capital Securities against the Trust in
respect of any amounts paid to such Holders by the Guarantor
under this Guarantee; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation of any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Guarantee, if at the time of any such payment, any amounts are
due and unpaid under this Guarantee. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Guarantee Trustee for the benefit
of the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Trust with
respect to the Capital Securities, and that the Guarantor shall
be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding
the occurrence of any event referred to in subsections 5.3(a)
through 5.3(g), inclusive, hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
<PAGE>
16
SECTION 6.1 Limitation of Transactions.
So long as any Capital Securities remain outstanding, if there
shall have occurred a Guarantee Event of Default or a Trust
Enforcement Event, then the Guarantor shall not, and shall not
permit any subsidiary of the Guarantor, to (i) declare or pay
any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, the
Guarantor's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Guarantor that rank pari
passu with or junior to the Debentures or make any guarantee
payments with respect to any guarantee by the Guarantor of the
debt securities of any subsidiary of the Guarantor if such
guarantee ranks pari passu with or junior to the Debentures
(other than (a) repurchases, redemptions or other acquisitions
of shares of capital stock of the Company in connection with
any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, or in connection
with a dividend reinvestment or stockholder stock purchase
plan, (b) as a result of an exchange or conversion of any class
or series of the Company's capital stock (or any capital stock
of a subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's
capital stock, (c) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a
dividend in connection with any stockholder's rights plans, or
the issuance of rights, stock or other property under any
stockholder's rights plan, or the redemption or repurchase of
rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend
stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the
dividend is being paid (or ranks pari passu with or junior to
such stock).
SECTION 6.2 Ranking.
This Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and
junior in right of payment to all other liabilities of the
Guarantor, except those liabilities of the Guarantor made pari
passu or subordinate by their terms.
If a Trust Enforcement Event has occurred and is
continuing under the Declaration, the rights of the holders of
the Common Securities to receive Guarantee Payments hereunder
shall be subordinated to the rights of the holders of the
Capital Securities to receive payment of all amounts due and
owing hereunder.
ARTICLE 7
TERMINATION
<PAGE>
17
SECTION 7.1 Termination.
This Guarantee shall terminate upon (i) full payment
of the Redemption Price of all Capital Securities, (ii) upon
the distribution of the Debentures to the Holders of all the
Capital Securities or (iii) upon full payment of the amounts
payable in accordance with the Declaration upon liquidation of
the Trust. Notwithstanding the foregoing, this Guarantee will
continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Capital Securities must
restore payment of any sums paid under the Capital Securities
or under this Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Guarantee and in a
manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified
Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon
such information, opinions, reports or statements presented to
the Guarantor by any Person as to any matter the Indemnified
Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including
information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which
Distributions to Holders of Capital Securities might properly be
paid.
SECTION 8.2 Indemnification.
The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless against
any and all loss, liability, damage, claims or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against,
or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of this Guarantee.
<PAGE>
18
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this
Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Capital Securities then
outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not
adversely affect the rights of the Holders (in which case no
consent of the Holders will be required), this Guarantee may
only be amended with the prior approval of the Holders of at
least a Majority in Liquidation Amount of the Capital
Securities. The provisions of Section 12.2 of the Declaration
with respect to meetings of, and action by written consent of
the Holders of the Capital Securities apply to the giving of
such approval.
SECTION 9.3 Notices.
All notices provided for in this Guarantee shall be
in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or
certified mail, as follows:
(a) If given to the Guarantee Trustee, at the
Guarantee Trustee's mailing address set forth below (or
such other address as the Guarantee Trustee may give notice
of to the Guarantor and the Holders of the Capital
Securities):
The Bank of New York
101 Barclay Street
Floor 21 W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Fax: (212) 815-5915
(b) If given to the Guarantor, at the Guarantor's
mailing addresses set forth below (or such other address as
the Guarantor may give notice of to the Guarantee Trustee
and the Holders of the Capital Securities):
GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
Attn: Chief Financial Officer
Fax: (212) 834-1404
(c) If given to any Holder of Capital Securities, at
the address set forth on the books and records of the
Trust.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to
deliver.
<PAGE>
19
SECTION 9.4 Benefit.
This Guarantee is solely for the benefit of the
Holders of the Capital Securities and, subject to Section 3.1(a),
is not separately transferable from the Capital Securities.
SECTION 9.5 Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
<PAGE>
IN WITNESS WHEREOF, this Guarantee is executed as of
the day and year first above written.
GREENPOINT FINANCIAL CORP.,
as Guarantor
By:_______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:_______________________________
Name:
Title:
This Registration Rights Agreement (this "Agreement")
is made and entered into as of June 3, 1997 by and among
GreenPoint Capital Trust I, a Delaware statutory business trust
(the "Trust"), GreenPoint Financial Corp., a Delaware corporation
("the Company") and Lehman Brothers Inc., J.P. Morgan Securities
Inc. and Keefe, Bruyette & Woods, Inc. (collectively, the
"Initial Purchasers").
This Agreement is entered into in connection with the
Purchase Agreement, dated as of May 29, 1997, among the Company,
the Trust and the Initial Purchasers (the "Purchase Agreement"),
which provides for the sale by the Trust to the Initial
Purchasers of $200,000,000 aggregate principal amount of the
Trust's 9.10% Subordinated Capital Income Securities, liquidation
amount $1,000 per security (the "Capital Securities"). The
Company will be the owner of all of the beneficial ownership
interest represented by the common securities (the "Common
Securities") of the Trust. The Capital Securities and the Common
Securities will be guaranteed by a guarantee (the "Guarantee") by
the Company, to the extent of funds held by the Trust.
Concurrently with the issuance of the Capital Securities, the
Guarantee and the Common Securities, the Trust will invest the
proceeds of each thereof in the Company's 9.10% Junior
Subordinated Debentures (the "Junior Subordinated Debentures"
and, together with the Capital Securities and the Guarantee, the
"Securities"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Trust and the Company have
agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and
delivery of this Agreement is a condition to the Initial
Purchasers' obligations to purchase the Capital Securities under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Securities were sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon
the occurrence of (i) the filing and effectiveness under
the Securities Act of the Exchange Offer Registration
Statement relating to the New Securities to be issued in
the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less
than the minimum period required pursuant to Section 3(b)
hereof, and (iii) the delivery by the Company and the Trust
of the New Securities in the same aggregate principal
amount as the aggregate principal amount of Transfer
Restricted Securities that were validly tendered by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the
Securities, each Distribution Date until the earlier of (i)
the date on which Liquidated Damages no longer are payable
or (ii) maturity of the Securities.
Declaration: The Amended and Restated Declaration
of Trust, dated as of June 3, 1997, among The Bank of New
York, as Property Trustee, The Bank of New York (Delaware),
as Delaware Trustee, the Administrators named therein and
the holders, from time to time, of undivided beneficial
interests in the assets of the Trust, pursuant to which the
Capital
<PAGE>
2
Securities are being issued, as amended or supplemented
from time to time in accordance with the terms thereof.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company
and the Trust under the Securities Act of the New
Securities pursuant to a Registration Statement pursuant to
which the Company and the Trust offer the Holders of all
outstanding Transfer Restricted Securities the opportunity
to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Securities in an
aggregate amount equal to the aggregate amount of the
Transfer Restricted Securities tendered in such exchange
offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the
Prospectus which forms a part thereof.
Exempt Resales: The transactions in which the
Initial Purchasers propose to sell the Securities to
certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Securities Act, to certain
institutional "accredited investors," as such term is
defined in Rule 501(a)(1), (2), (3) and (7) of Regulation D
under the Securities Act ("Accredited Institutions") and to
certain non-U.S. persons.
Guarantee Agreement: The Guarantee Agreement,
dated as of June 3, 1997, between the Company and The Bank
of New York, as Guarantee Trustee, pursuant to which the
Guarantee is being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of June 3,
1997, between the Company and The Bank of New York, as
trustee (the "Trustee"), pursuant to which the Junior
Subordinated Debentures are to be issued, as such Indenture
is amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Distribution: As defined in the Declaration.
NASD: National Association of Securities Dealers, Inc.
New Junior Subordinated Debentures: The Company's
Junior Subordinated Debentures to be issued pursuant to the
Indenture in the Exchange Offer.
New Securities: The Securities to be issued pursuant to
the Indenture, the Declaration and the Guarantee Agreement in the
Exchange Offer.
<PAGE>
3
Person: An individual, partnership, corporation,
limited liability company, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a
Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration
statement of the Company and the Trust relating to (a) an
offering of New Securities pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this
Agreement, in either case, including the Prospectus
included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb), as amended.
Transfer Restricted Securities: Each Security,
until the earliest to occur of (a) the date on which such
Security has been exchanged by a person other than a
Broker-Dealer for New Security in the Exchange Offer, (b)
following the exchange by a Broker-Dealer in the Exchange
Offer of such Security for one or more New Securities, the
date on which such New Securities are sold to a purchaser
who receives from such Broker-Dealer on or prior to the
date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (c) the date on
which such Securities has been effectively registered under
the Securities Act and disposed of in accordance with the
Shelf Registration Statement or (d) the date on which such
Security is eligible to be distributed to the public
pursuant to Rule 144 under the Securities Act;
Underwritten Registration or Underwritten
Offering: A registration in which securities of the Company
and the Trust are sold to an underwriter for reoffering to
the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The
securities entitled to the benefits of this Agreement are
the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns
Transfer Restricted Securities.
<PAGE>
4
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be
permissible under applicable law or Commission policy
(after the procedures set forth in Section 6(a) below have
been complied with) or one of the events set forth in
Section 4(a)(ii) has occurred the Company and the Trust
shall (i) cause to be filed with the Commission promptly
after the Closing Date, but in no event later than 150 days
after the Closing Date, a Registration Statement under the
Securities Act relating to the New Securities and the
Exchange Offer, (ii) use their respective best efforts to
cause such Registration Statement to become effective no
later than 180 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to
become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule
430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and
qualification of the New Securities to be made under the
Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, and (iv) unless
the Exchange Offer would not be permitted by applicable law
or Commission policy, the Company will commence the
Exchange Offer and use its best efforts to issue on or
prior to 30 business days after the date on which such
Registration Statement was declared effective by the
Commission, New Securities in exchange for all Securities
tendered prior thereto in the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting
registration of the New Securities to be offered in
exchange for the Transfer Restricted Securities and to
permit resales of New Securities held by Broker-Dealers as
contemplated by Section 3(c) below. The 150, 180 and 30
business day periods referred to in (i), (ii) and (iii) of
the Section 3(a) shall not include any period during which
the Company is pursuing a Commission ruling pursuant to
Section 6(a)(i) below.
(b) the Company and the Trust shall use their
respective best efforts to cause the Exchange Offer
Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal
and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be
less than 20 business days. The Company and the Trust shall
cause the Exchange Offer to comply in all material respects
with all applicable federal and state securities laws. No
securities other than the New Securities shall be included
in the Exchange Offer Registration Statement. The Company
and the Trust shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than
30 business days thereafter.
(c) the Company and the Trust shall indicate in a
"Plan of Distribution" section contained in the Prospectus
contained in the Exchange Offer Registration Statement that
any Broker-Dealer who holds Securities that are Transfer
Restricted Securities and that were acquired for its own
account as a result of market-making activities or other
trading activities (other than Transfer Restricted
Securities acquired directly from the Company and the
Trust), may exchange such Securities pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed
to be an "underwriter" within the meaning of the Securities
Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resales of the New Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the
Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers
<PAGE>
5
that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of New
Securities held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change
in policy announced after the date of this Agreement.
The Company and the Trust shall use their respective
best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by
the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of New Securities
acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement,
the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180
days from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company and the Trust shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day period in
order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and
the Trust are not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable
law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), (ii) the
Company has received an opinion of counsel, rendered by a
law firm having a nationally recognized tax practice, to
the effect that, as a result of the consummation of the
Exchange Offer there is more than an insubstantial risk
that (x) the Trust would be subject to United States
federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures or New Junior
Subordinated Debentures, (y) interest payable by the
Company on such Junior Subordinated Debentures or New
Junior Subordinated Debentures would not be deductible by
the Company, in whole or in part, for United States federal
income tax purposes, or (z) the Trust would be subject to
more than a de minimis amount of other taxes, duties or
other governmental charges or (iii) if any Holder of
Transfer Restricted Securities that is a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) or an "accredited investor" (as defined in
Rule 501(A)(1), (2), (3) or (7) under the Securities Act)
shall notify the Company at least 20 business days prior to
the Consummation of the Exchange Offer (A) that such Holder
is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) that such
Holder may not resell the New Securities acquired by it in
the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Securities acquired
directly from the Trust and the Company or one of its
affiliates, then the Trust and the Company shall in lieu
of, or in the event of (iii) above, in addition to
effecting the registration of the New Capital Securities
pursuant to the Exchange Open Registration Statement use
their respective best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities
Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf
Registration Statement"), on or prior to the earliest
<PAGE>
6
to occur of (1) the 150th day after the date on which the
Trust and the Company determines that they are not required
to file the Exchange Offer Registration Statement or
(2) the 150th day after the date on which the Trust
and the Company receive notice from a Holder of
Transfer Restricted Securities as contemplated by
clause (iii) above (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have
provided the information required pursuant to Section
4(b) hereof; and
(y) cause such Shelf Registration Statement
to be declared effective by the Commission on or
before the 180th day after the Shelf Filing Deadline.
The Trust and the Company shall use their respective best
efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof
to the extent necessary to ensure that it is available for
resales of Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules
and regulations of the Commission as announced from time to
time, for a period ending on the second anniversary of the
Closing Date.
(b) Provision by Holders of Certain Information
in Connection with the Shelf Registration Statement. No
Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless
and until such Holder furnishes to the Trust and the
Company in writing, within 20 business days after receipt
of a request therefor, such information as the Trust and
the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to
Liquidated Damages pursuant to Section 5 hereof unless and
until such Holder shall have used its best efforts to
provide all such reasonably requested information. Each
Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Trust and
the Company all information required to be disclosed in
order to make the information previously furnished to the
Trust and the Company by such Holder not materially
misleading.
5. Additional Interest and Additional Distributions
(a) If (a) any of the Registration Statements required
by this Agreement is not filed with the Commission on or prior to
the date specified for such filing in this Agreement, (b) any of
such Registration Statements has not been declared effective by
the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target
Date"), (c) the Exchange Offer has not been Consummated within 30
business days after the Effectiveness Target Date with respect to
the Exchange Offer Registration Statement or (d) any Registration
Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to
be usable for its intended purpose without being succeeded within
two business days by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
immediately declared effective (each such event referred to in
clauses (a) through (d), a "Registration Default"), additional
interest ("Additional Interest") shall accrue in respect of the
Junior Subordinated Debentures (including in respect of amounts
accruing during any Extension Period (as defined in the
Indenture)) and corresponding additional
<PAGE>
7
Distributions ("Additional Distributions") shall accrue to each
Holder of Capital Securities and/or Common Securities commencing
upon the occurrence of such Registration Default in the form of
an increase in the annual distribution rate equal to .05%,
increasing by increments of .05% each week but in no event
greater than .25%, until all Registration Defaults have been
cured. All accrued Additional Interest (and corresponding
Additional Distributions) shall be paid to Holders by the Trust
and the Company in the same manner as interest and Distributions
are made pursuant to the Indenture and the Declaration. Following
the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of Additional
Interest (and corresponding Additional Distributions) with
respect to such Transfer Restricted Securities will cease.
All obligations of the Trust and the Company set forth
in the preceding paragraph that have accrued and are outstanding
with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in
full.
(b) The Trust and the Company shall notify the
Property Trustee within one business day after each and every
date on which an event occurs in respect of which Additional
Interest (and corresponding Additional Distributions) are
required to be paid (an "Event Date"). Additional Distributions
shall be paid by depositing Additional Interest with the Property
Trustee, in trust, for the benefit of the Holders of the Capital
Securities and/or the Common Securities, on or before the
applicable Interest Payment Date (whether or not any payment
other than Additional Distributions is payable on such
Securities), in immediately available funds in sums sufficient to
pay the Additional Distributions then due to such Holders. Each
obligation to pay Additional Interest and Additional
Distributions shall be deemed to accrue from the applicable date
of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Trust and the
Company shall comply with all of the provisions of Section
6(c) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply
with all of the following provisions:
(i) If in the reasonable opinion of counsel
to the Trust and the Company there is a question as to
whether the Exchange Offer is permitted by applicable
law, the Trust and the Company hereby agrees to seek a
no-action letter or other favorable decision from the
Commission allowing the Trust and the Company to
Consummate an Exchange Offer for such Securities. The
Trust and the Company hereby agree to pursue the
issuance of such a decision to the Commission staff
level but shall not be required to take commercially
unreasonable action to effect a change of Commission
policy. The Trust and the Company hereby agree,
however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission
staff an analysis prepared by counsel to the Trust and
the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently
pursue a resolution (which need not be favorable) by
the Commission staff of such submission.
(ii) As a condition to its participation in
the Exchange Offer pursuant to the terms of this
Agreement, each Holder of Transfer Restricted
Securities shall furnish,
<PAGE>
8
upon the request of the Trust or the Company, prior to
the Consummation thereof, a written representation to
the Trust or the Company (which may be contained in
the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A)
it is not an affiliate of the Trust or the Company,
(B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding
with any person to participate in, a distribution of
the New Securities to be issued in the Exchange Offer
and (C) it is acquiring the New Securities in its
ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's and the Trust's
preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this
Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (including
Brown & Wood LLP (available February 7, 1997), and any
no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act
in connection with a secondary resale transaction and
that such a secondary resale transaction should be
covered by an effective registration statement
containing the selling security holder information
required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of New Securities
obtained by such Holder in exchange for Securities
acquired by such Holder directly from the Trust or the
Company.
(iii) Prior to effectiveness of the Exchange
Offer Registration Statement, the Company and the
Trust shall provide a supplemental letter to the
Commission (A) stating that the Company and the Trust
are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Morgan
Stanley and Co., Inc. (available June 5, 1991) Brown &
Wood LLP (available February 7, 1997) and, if
applicable, any no-action letter obtained pursuant to
clause (i) above and (B) including a representation
that the Company and the Trust have not entered into
any arrangement or understanding with any Person to
distribute the New Securities to be received in the
Exchange Offer and that, to the best of the Company's
and the Trust's information and belief, each Holder
participating in the Exchange Offer is acquiring the
New Securities in its ordinary course of business and
has no arrangement or understanding with any Person to
participate in the distribution of the New Securities
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection
with the Shelf Registration Statement, the Company and the
Trust shall comply with all the provisions of Section 6(c)
below and shall use their best efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant
thereto the Company and the Trust will as expeditiously as
possible prepare and file with the Commission a
Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall
be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or
methods of distribution thereof.
<PAGE>
9
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer
Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required
to permit resales of Securities by Broker-Dealers), the
Company and the Trust shall:
(i) use their best efforts to keep such
Registration Statement continuously effective and
provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement,
as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted
Securities during the period required by this
Agreement, the Company and the Trust shall file
promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of
either clause (A) or (B), use their best efforts to
cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission
such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by
such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by such Registration Statement
during the applicable period in accordance with the
intended method or methods of distribution by the
sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) in the case of a Shelf Registration
advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm
such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has
been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request
by the Commission for amendments to the Registration
Statement or amendments or supplements to the
Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of
the suspension by any state securities commission of
the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact
or the happening of any event that makes any statement
of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto,
or any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the
Registration Statement, or any state securities
<PAGE>
10
commission or other regulatory authority
shall issue an order suspending the qualification or
exemption from qualification of the Transfer
Restricted Securities under state securities or Blue
Sky laws, the Trust and the Company shall use their
best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) furnish to each of the selling or
exchanging Holders and each of the underwriter(s), if
any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included
therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all
documents incorporated by reference after the initial
filing of such Registration Statement), which
documents will be subject to the review of such
Holders and underwriter(s), if any, for a period of at
least five business days, and the Trust and the
Company will not file any such Registration Statement
or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which
selling Holders of a majority in Liquidation Amount of
Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any,
shall reasonably object within five business days
after the receipt thereof. A selling Holder or
underwriter, if any, shall be deemed to have
reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(v) promptly prior to the filing of any
document that is to be incorporated by reference into
a Registration Statement or Prospectus, provide copies
of such document to the selling Holders and to the
underwriter(s), if any, make the Trust's and the
Company's representatives available for discussion of
such document and other customary due diligence
matters, and include such information in such document
prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) in the case of a Shelf Registration,
make available at reasonable times for inspection by
the selling Holders, any underwriter participating in
any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate
documents and properties of the Trust and the Company
and cause the Trust's and the Company's officers,
directors, managers and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) in the case of a Shelf Registration,
if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary,
such information as such selling Holders and
underwriter(s), if any, may reasonably request to have
included therein, including, without limitation,
information relating to the "Plan of Distribution" of
the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities
to be sold in such offering; and make all required
filings of such Prospectus supplement or
post-effective amendment as soon as practicable after
<PAGE>
11
the Trust and the Company are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted
Securities covered by the Registration Statement to be
rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate
principal amount of Securities covered thereby or the
underwriter(s), if any;
(ix) in the case of a Shelf Registration
furnish, to each selling Holder and each of the
underwriter(s), if any, without charge, at least one
copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto,
including all documents incorporated by reference
therein and all exhibits (including exhibits
incorporated therein by reference);
(x) in the case of a Shelf Registration,
deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies
of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as
such Persons reasonably may request; the Trust and the
Company hereby consent to the use of the Prospectus
and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xi) in the case of a Shelf Registration,
enter into such agreements (including an underwriting
agreement), and make such representations and
warranties, and take all such other actions in
connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted
Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as
may be requested by any Purchaser or by any Holder of
Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement;
and in connection with an Underwritten Registration,
the Trust and the Company shall:
(A) upon request, furnish to each
selling Holder and each underwriter, if any, in
such substance and scope as they may request and
as are customarily made by issuers to
underwriters in primary underwritten offerings,
upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date
of the effectiveness of the Shelf
Registration Statement, signed by (y) the
Chairman of the Board its President or a
Vice President and (z) the Chief Financial
Officer of the Company, confirming, as of
the date thereof, such matters as such
parties may reasonably request;
(2) an opinion, dated the date of
the effectiveness of the Shelf Registration
Statement, of counsel for the Company and
the Trust, covering such matters as such
parties may reasonably request, and in any
event including a statement to the effect
that such counsel has participated in
conferences with officers and other
representatives of the Company and the
Trust, representatives of the independent
public
<PAGE>
12
accountants for the Company, the Initial
Purchasers' representatives and the Initial
Purchasers' counsel in connection with the
preparation of such Registration Statement
and the related Prospectus and have
considered the matters required to be stated
therein and the statements contained
therein, although such counsel has not
independently verified the accuracy,
completeness or fairness of such statements;
and that such counsel advises that, on the
basis of the foregoing (relying as to
materiality to a large extent upon facts
provided to such counsel by officers and
other representatives of the Company and the
Trust and without independent check or
verification), no facts came to such
counsel's attention that caused such counsel
to believe that the applicable Registration
Statement, at the time such Registration
Statement or any post-effective amendment
thereto became effective, contained an
untrue statement of a material fact or
omitted to state a material fact required to
be stated therein or necessary to make the
statements therein not misleading, or that
the Prospectus contained in such
Registration Statement as of its date,
contained an untrue statement of a material
fact or omitted to state a material fact
necessary in order to make the statements
therein, in light of the circumstances under
which they were made, not misleading.
Without limiting the foregoing, such counsel
may state further that such counsel assumes
no responsibility for, and has not
independently verified, the accuracy,
completeness or fairness of the financial
statements, notes and schedules and other
financial data included in any Registration
Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter,
dated the date of the effectiveness of the
Shelf Registration Statement, from the
Company's independent accountants, in the
customary form and covering matters of the
type customarily covered in comfort letters
by underwriters in connection with primary
underwritten offerings.
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any,
the indemnification provisions and procedures of
Section 8 hereof with respect to all parties to
be indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by
such parties to evidence compliance with clause
(A) above and with any customary conditions
contained in the underwriting agreement or other
agreement entered into by the Company and the
Trust pursuant to this clause (xi), if any.
If at any time the representations and
warranties of the Company contemplated in clause
(A)(1) above cease to be true and correct, the Company
shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall
confirm such advice in writing;
<PAGE>
13
(xii) prior to any public offering of
Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the
registration and qualification of the Transfer
Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as
the selling Holders or underwriter(s) may reasonably
request and do any and all other acts or things
necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration
Statement; provided, however, that neither the Company
nor the Trust shall not be required to register or
qualify as a foreign corporation where it is not now
so qualified or to take any action that would subject
it to the service of process in suits or to taxation,
other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where
it is not now so subject;
(xiii) shall issue, upon the request of any
Holder of Securities covered by the Shelf Registration
Statement, New Securities in the same amount as the
Securities surrendered to the Company and the Trust by
such Holder in exchange therefor or being sold by such
Holder; such New Securities to be registered in the
name of such Holder or in the name of the purchaser(s)
of such Securities, as the case may be; in return, the
Securities held by such Holder shall be surrendered to
the Company and the Trust for cancellation;
(xiv) in the case of a Shelf Registration,
cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such
denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at
least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the
Transfer Restricted Securities covered by the
Registration Statement to be registered with or
approved by such other governmental agencies or
authorities as may be necessary to enable the seller
or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause
(xii) above;
(xvi) if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to
the Registration Statement or related Prospectus or
any document incorporated therein by reference or file
any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein
not misleading;
(xvii) provide CUSIP numbers for all
Transfer Restricted Securities not later than the
effective date of the Registration Statement and
provide certificates for the Transfer Restricted
Securities;
(xviii) cooperate and assist in any filings
required to be made with the NASD and in the
performance of any due diligence investigation by any
underwriter (including any "qualified independent
underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD,
and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental
<PAGE>
14
agencies or authorities as may be necessary to enable
the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities; provided, however, that neither the
Company nor the Trust shall not be required to
register or qualify as a foreign corporation where it
is not now so qualified or to take any action that
would subject it to the service of process in suits or
to taxation, other than as to matters and transactions
relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xix) otherwise use its best efforts to
comply with all applicable rules and regulations of
the Commission, and make generally available to its
security holders, as soon as practicable, a
consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited)
for the twelve-month period (A) commencing at the end
of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the
first month of the Company's first fiscal quarter
commencing after the effective date of the
Registration Statement;
(xx) cause the Indenture and the Declaration
to be qualified under the TIA not later than the
effective date of the first Registration Statement
required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders
of Securities to effect such changes to the Indenture
and the Declaration as may be required for such
Indenture and the Declaration to be so qualified in
accordance with the terms of the TIA; and execute and
use their best efforts to cause the Indenture Trustee,
Guarantee Trustee and the Property Trustee to execute,
all documents that may be required to effect such
changes and all other forms and documents required to
be filed with the Commission to enable such Indenture
to be so qualified in a timely manner; and
(xxi) provide promptly to each Holder upon
request each document filed with the Commission
pursuant to the requirements of Section 13 and Section
15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from
the Company or the Trust of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is
advised in writing (the "Advice") by the Company or the
Trust that the use of the Prospectus may be resumed, and
has received copies of any additional or supplemental
filings that are incorporated by reference in the
Prospectus. If so directed by the Company or the Trust,
each Holder will deliver to the Company or the Trust (at
the Company's and the Trust's expense) all copies, other
than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of
receipt of such notice. In the event the Company or the
Trust shall give any such notice, the time period regarding
the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including
the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended
<PAGE>
15
Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Company's and the
Trust's performance of or compliance with this Agreement
will be borne by the Company and the Trust, regardless of
whether a Registration Statement becomes effective,
including without limitation: (i) all registration and
filing fees and expenses (including filings made by any
Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and
expenses of compliance with federal securities and state
Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the New Securities to
be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery
services and telephone; (iv) all fees and disbursements of
counsel for the Company and the Trust; (v) all application
and filing fees in connection with listing Securities on a
national securities exchange or automated quotation system;
and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Trust
(including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Company and the Trust will, in any event,
bear their internal expenses (including, without
limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of
any Person, including special experts, retained by the
Company or the Trust.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement
or in connection with any delivery of a Prospectus contained in
an Exchange Offer Registration Statement by any participating
Broker-Dealer or Initial Purchaser, as applicable, who seeks to
sell New Securities, the Company and the Trust shall indemnify
and hold harmless each Holder of Transfer Restricted Securities
included within any such Shelf Registration Statement and each
participating Broker-Dealer or Initial Purchaser selling New
Securities, and each person, if any, who controls any such person
within the meaning of Section 15 of the Securities Act (each, a
"Participant") from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of
Securities) to which such Participant or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse each Participant promptly upon
demand for any legal or other expenses reasonably incurred by
such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that (i) the Company and the Trust shall not be liable
in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in any such Registration Statement or any
prospectus forming part thereof or in any such amendment or
supplement in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on
behalf of any Participant specifically for inclusion therein; and
provided further that as to any preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any such Participant or any controlling
person of such Participant on account of any loss, claim, damage,
liability or action arising from the sale of the New Securities
to any person
<PAGE>
16
by that Participant if (i) that Participant failed to send or
give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the
Securities Act and (ii) the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact in such preliminary Prospectus was
corrected in the Prospectus, unless, in each case, such failure
resulted from non-compliance by the Company and the Trust with
Section 6(c). The foregoing indemnity agreement is in addition to
any liability which the Company and the Trust may otherwise have
to any Participant or to any controlling person of that
Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company and the Trust, each of
its directors, officers, employees or agents and each person, if
any, who controls the Company and the Trust within the meaning of
Section 15 of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company and the Trust or any such
director, officer, employees or agents or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
Prospectus, Registration Statement or Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on
behalf of that Participant specifically for inclusion herein, and
shall reimburse the Company and the Trust and any such director,
officer, employees or agents or controlling person for any legal
or other expenses reasonably incurred by the Company and the
Trust or any such director, officer, employees or agents or
controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Participant may otherwise have to the Company and the Trust or
any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except
to the extent it has been materially prejudiced by such failure
and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall have notified the indemnifying
party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the indemnified party
shall have the right to employ counsel to represent jointly the
indemnified party and those other Participants and its respective
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity
may be sought by the Participants against the indemnifying party
under this Section 8 if, in the reasonable judgment of the
indemnified party it is advisable for the indemnified party and
those Participants, officers, employees and controlling persons
to be jointly represented by separate counsel, and in that event
the fees and expenses of such separate
<PAGE>
17
counsel shall be paid by the indemnifying party. In no event
shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to local counsel).
Each indemnified party, as a condition of the indemnity
agreements contained in Section 8, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 8(a) or 8(b)
in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be
appropriate to reflect the relative fault of the Trust and the
Company on the one hand and the Participants on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by the Trust and the Company or the
Participants, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Trust and
the Participants agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d)
shall be deemed to include, for purposes of this Section 8(d),
any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Participant shall be required to contribute any
amount in excess of the amount by which proceeds received by such
Participant from an offering of the Notes exceeds the amount of
any damages which such Participant has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Participants' obligations to contribute as provided in this
Section 8(d) are several and not joint.
9. Rule 144A.
The Company and the Trust hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4)
<PAGE>
18
under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lockup letters and other
documents required under the terms of such underwriting
arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell
such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer
the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
included in such offering; provided, that such investment bankers
and managers must be reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company and the Trust agree
that monetary damages (including Additional Interest and
Additional Distributions) would not be adequate
compensation for any loss incurred by reason of a breach by
it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and
the Trust will not on or after the date of this Agreement
enter into any agreement with respect to their securities
that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the
provisions hereof. The Company and the Trust have not
previously entered into any agreement granting any
registration rights with respect to their securities to any
Person. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the
rights granted to the holders of the Trust's and the
Company's securities under any agreement in effect on the
date hereof.
(c) Adjustments Affecting the Notes. The Company
and the Trust will not take any action, or permit any
change to occur, with respect to Securities that would
materially and adversely affect the ability of the Holders
to Consummate any Exchange Offer unless such action or
change is required by applicable law.
(d) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company
and the Trust have obtained the written consent of Holders
of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or
indirectly the rights of other Holders
<PAGE>
19
whose securities are not being tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in
writing by hand-delivery, first-class mail (registered or
certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Declaration; and
(ii) if to the Company and the Trust:
GreenPoint Capital Trust I
GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
Facsimile:
With a copy to:
Kenneth L. Bachman, Jr., Esq.
Cleary Gottlieb Steen & Hamilton
1752 N Street, N.W.
Washington, D.C. 20036
Facsimile: (202) 429-0946
All such notices and communications shall be
deemed to have been duly given: at the time delivered by
hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged,
if telecopied; and on the next business day, if timely
delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the
Person giving the same to the Trustee at the address
specified in the Indenture.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including without
limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities;
provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of
a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
<PAGE>
20
(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New
York, without regard to the conflict of law rules thereof.
(j) Severability. In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the
remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Entire Agreement. This Agreement together
with the other transaction documents is intended by the
parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein with
respect to the registration rights granted by the Company
and the Trust with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such
subject matter.
(l) Required Consents. Whenever the consent or
approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such
required percentage.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
GREENPOINT FINANCIAL CORP.
By:________________________
Name:
Title:
GREENPOINT CAPITAL TRUST I
By:________________________
Name:
Title: Administrator
Accepted as of the date thereof
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
Keefe, Bruyette & Woods, Inc.
Acting severally on behalf of
themselves and the several
Purchasers named herein
By LEHMAN BROTHERS INC.
By:________________________
Name:
Title:
<PAGE>
-------------------------------------------------------------------
-------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of June 3, 1997
Among
GREENPOINT CAPITAL TRUST I,
GREENPOINT FINANCIAL CORP.
and
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
and
KEEFE, BRUYETTE & WOODS, INC.
as Initial Purchasers
-------------------------------------------------------------------
-------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
1. Definitions............................................... 1
2. Securities Subject to This Agreement...................... 3
3. Registered Exchange Offer................................. 4
4. Shelf Registration........................................ 5
5. Additional Interest and Additional Distributions.......... 6
6. Registration Procedures................................... 7
7. Registration Expenses..................................... 14
8. Indemnification and Contribution.......................... 15
9. Rule 144A................................................. 17
10. Participation in Underwritten Registrations............... 18
11. Selection of Underwriters................................. 18
12. Miscellaneous............................................. 18
<PAGE>
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of GreenPoint
Financial Corp. and GreenPoint Capital Trust of our report dated
January 21, 1997, which appears on page 44 of GreenPoint's Financial
Corp.'s 1996 Annual Report to Stockholders, which is incorporated by
reference in its Annual Report on Form 10-K for the year ended December 31,
1996. We also consent to the reference to us under the heading
"Independent Accountants" in such Prospectus.
/s/ Price Waterhouse LLP
August 19, 1997
New York, New York
Independent Auditors' Consent
-----------------------------
The Shareholders and the Board of Directors of
GreenPoint Financial Corp.
We consent to incorporation by reference in the registration statement
(No. 333- ) on Form S-4 of GreenPoint Financial Corp. of our report dated
January 19, 1996 relating to the consolidated statement of financial
condition of GreenPoint Financial Corp. and Subsidiaries as of December
31, 1995 and the related consolidated statements of income, changes in
stockholders' equity and cash flows for the years ended December 31, 1995
and 1994, which report is included in the December 31, 1996 annual report
on Form 10-K of GreenPoint Financial Corp. We also consent to the reference
to our Firm under the heading "Independent Accountants" in the registration
statement.
/s/ KPMG PEAT MARWICK LLP
Jericho, New York
August 19, 1997
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Wilfred O. Uhl
_________________________
Wilfred O. Uhl
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Bernard S. Berman
_________________________
Bernard S. Berman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Robert P. Quinn
_________________________
Robert P. Quinn
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Edward C. Bessey
_________________________
Edward C. Bessey
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Robert M. McLane
_________________________
Robert M. McLane
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ William M. Jackson
_________________________
William M. Jackson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Susan J. Kropf
_________________________
Susan J. Kropf
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Jules Zimmerman
_________________________
Jules Zimmerman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Edward C. Schmults
_________________________
Edward C. Schmults
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Dan F. Huebner
_________________________
Dan F. Huebner
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Robert Vizza
_________________________
Robert Vizza
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Charles B. McQuade
_________________________
Charles B. McQuade
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Alvin N. Puryear
_________________________
Alvin N. Puryear
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of GreenPoint Financial Corp., a
Delaware corporation (the "Company"), hereby constitutes and
appoints Thomas S. Johnson and Howard C. Bluver, and each of them
singly, as his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, acting in the name
of and on behalf of the undersigned, to sign the Registration
Statement on Form S-4 of the Company and any and all amendments
thereto, including post-effective amendments and supplements (if
any) thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission. The undersigned does hereby grant unto such
attorneys-in-fact and agents (and either of them) full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in such connection, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents (and either of them), or their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of July, 1997.
/s/ Thomas S. Johnson
_________________________
Thomas S. Johnson
<PAGE>
CONFORMED COPY
=================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal (Zip code)
executive offices)
--------------
GREENPOINT FINANCIAL CORP.
(Exact name of obligor as specified in its charter)
Delaware 06-1379001
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
(Address of principal (Zip code)
executive offices)
--------------
Junior Subordinated Debentures due 2027
(Title of the indenture securities)
=================================================================
<PAGE>
CONFORMED COPY
1. General information. Furnish the following information as
to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
-----------------------------------------------------------
Name Address
-----------------------------------------------------------
Superintendent of Banks 2 Rector Street, New York,
of the State of New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank 33 Liberty Plaza, New York,
of New York N.Y. 10045
Federal Deposit Washington, D.C. 20429
Insurance Corporation
New York Clearing New York, New York 10005
House Association
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form
T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration
Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE>
CONFORMED COPY
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 29th day of July, 1997.
THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
---------------------------
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
-3-
<PAGE>
Exhibit 7
- -----------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
March 31, 1997, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
------------
Total equity capital ................ 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
I, Robert E. Keilman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
-
Alan R. Griffith |
J. Carter Bacot |
Thomas A. Renyi | Directors
-
- -----------------------------------------------------------------
CONFORMED COPY
=================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal (Zip code)
executive offices)
--------------
GREENPOINT CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware 06-1379001
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
(Address of principal (Zip code)
executive offices)
--------------
9.10% Subordinated Capital Income Securities
(Title of the indenture securities)
=================================================================
<PAGE>
CONFORMED COPY
1. General information. Furnish the following information as
to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
-----------------------------------------------------------
Name Address
-----------------------------------------------------------
Superintendent of Banks 2 Rector Street, New York,
of the State of New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank 33 Liberty Plaza, New York,
of New York N.Y. 10045
Federal Deposit Washington, D.C. 20429
Insurance Corporation
New York Clearing New York, New York 10005
House Association
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form
T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration
Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE>
CONFORMED COPY
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 29th day of July, 1997.
THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
---------------------------
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
-3-
<PAGE>
Exhibit 7
- -----------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
March 31, 1997, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
------------
Total equity capital ................ 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
I, Robert E. Keilman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
-
Alan R. Griffith |
J. Carter Bacot |
Thomas A. Renyi | Directors
-
- -----------------------------------------------------------------
CONFORMED COPY
=================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal (Zip code)
executive offices)
--------------
GREENPOINT FINANCIAL CORP.
(Exact name of obligor as specified in its charter)
Delaware 06-1379001
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
(Address of principal (Zip code)
executive offices)
--------------
Guarantee of 9.10% Subordinated Capital Income Securities
of GreenPoint Capital Trust I
(Title of the indenture securities)
=================================================================
<PAGE>
CONFORMED COPY
1. General information. Furnish the following information as
to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
-----------------------------------------------------------
Name Address
-----------------------------------------------------------
Superintendent of Banks 2 Rector Street, New York,
of the State of New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank 33 Liberty Plaza, New York,
of New York N.Y. 10045
Federal Deposit Washington, D.C. 20429
Insurance Corporation
New York Clearing New York, New York 10005
House Association
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form
T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration
Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE>
CONFORMED COPY
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 29th day of July, 1997.
THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
---------------------------
Name: MARY JANE MORRISSEY
Title: VICE PRESIDENT
-3-
<PAGE>
Exhibit 7
- -----------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
March 31, 1997, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
------------
Total equity capital ................ 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
I, Robert E. Keilman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
-
Alan R. Griffith |
J. Carter Bacot |
Thomas A. Renyi | Directors
-
- -----------------------------------------------------------------
EXHIBIT 99.1
LETTER OF TRANSMITTAL
GREENPOINT CAPITAL TRUST I
OFFER TO EXCHANGE ITS
9.10% SUBORDINATED CAPITAL INCOME SECURITIES
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
9.10% SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS DATED ___________________, 1997
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ____________________, 1997, UNLESS EXTENDED.
To: The Bank of New York, as Exchange Agent
By Mail: By Facsimile: By Overnight Courier
or Hand:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street, 7E 101 Barclay Street
New York, New York 10286 For Information Call: New York, New York 10286
Attn: Enrique Lopez, (212) 815-2742 Corporate Trust Services
Reorganization Section, Window, Ground Level
Floor 7E Attn: Enrique Lopez,
Reorganization Section
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION VIA A FACSIMILE NUMBER OTHER
THAN THE ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD
BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges that he or she has
received the Prospectus dated ____________, 1997 (the
"Prospectus"), of GreenPoint Capital Trust I (the "Trust") and
GreenPoint Financial Corp. (the "Company"), this Letter of
Transmittal (the "Letter of Transmittal") and the Notice of
Guaranteed Delivery (the "Notice of Guaranteed Delivery"), which
together constitute the Trust's offer (the "Exchange Offer") to
exchange its 9.10% Subordinated Capital Income Securities (the
"New Capital Securities") for a like Liquidation Amount of its
outstanding 9.10% Subordinated Capital Income Securities (the
"Old Capital Securities" and, together with the New Capital
Securities, the "Capital Securities"). The terms of the New
Capital Securities are identical in all material respects to the
Old Capital Securities, except that the New Capital Securities
have been registered under the Securities Act of 1933, as amended
(the "Securities Act"), and, therefore, will not bear legends
restricting their transfer and will not contain certain
provisions providing for an increase in the Distribution rate
thereon. The term "Expiration Date" shall mean 5:00 p.m., New
York City time, on ____________________, 1997, unless the
Exchange Offer is extended as provided in the Prospectus, in
which case the term "Expiration
<PAGE>
Date" shall mean the latest date and time to which the Exchange
Offer is extended. Capitalized terms used but not defined herein
have the meanings given to them in the Prospectus.
Holders who wish to tender their Old Capital
Securities and (i) whose Old Capital Securities are not
immediately available or (ii) who cannot deliver their Old
Capital Securities, this Letter of Transmittal or an Agent's
Message (as defined in the Prospectus and in Instruction 1 below)
in lieu of such Letter of Transmittal and any other documents
required by this Letter of Transmittal to the Exchange Agent
prior to the Expiration Date must tender their Old Capital
Securities according to the guaranteed delivery procedures set
forth under the caption "The Exchange Offer--Procedures for
Tendering Old Capital Securities--Guaranteed Delivery" in the
Prospectus. See Instruction 1 below.
The term "Holder" with respect to the Exchange Offer
means any person in whose name Old Capital Securities are
registered on the books of the Trust or any other person who has
obtained a properly completed bond power from the registered
holder. The undersigned has completed, executed and delivered
this Letter of Transmittal to indicate the action the undersigned
desires to take with respect to the Exchange Offer. Holders who
wish to tender their Old Capital Securities must complete this
Letter of Transmittal in its entirety.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE
COMPLETING THIS LETTER OF TRANSMITTAL
- ----------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- ----------------------------------------------------------------------------
Liquidation Number of
Amount of Beneficial
Old Capital Old Capital Holders for
Securities Securities Whom Old
Name and Address Tendered Tendered Capital
of Registered Holder Certificate (Attach (if Less Securities are
(Please fill in blank) Numbers* Additional than All)** Held
List if
Necessary)
- ----------------------------------------------------------------------------
$
- ----------------------------------------------------------------------------
$
- ----------------------------------------------------------------------------
$
- ----------------------------------------------------------------------------
$
- ----------------------------------------------------------------------------
Total Amount Tendered $
- ----------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in whole or
in part. All Old Capital Securities held shall be
deemed tendered unless a lesser number is specified in
this column.
<PAGE>
__
__ CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH DTC AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN DTC
MAY DELIVER CAPITAL SECURITIES BY BOOK-ENTRY TRANSFER) (SEE INSTRUCTION 1):
Name of Tendering Institution.................................
DTC Account Number............................................
Transaction Code Number.......................................
__
__ CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
EXCHANGE AGENT AND COMPLETE THE FOLLOWING (SEE INSTRUCTION 1):
Name of Registered Holder.....................................
Window Ticket Number (if any).................................
Date of Execution of Notice of Guaranteed Delivery............
Name of Institution which Guaranteed Delivery.................
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution.................................
DTC Account Number............................................
Transaction Code Number.......................................
__
__ CHECK HERE IF OLD CAPITAL SECURITIES TENDERED BY BOOK-ENTRY TRANSFER
BUT NOT EXCHANGED ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT
NUMBER SET FORTH ABOVE.
__
__ CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD
CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET
MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING
BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name..........................................................
Address.......................................................
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Trust and the
Company the above-described aggregate Liquidation Amount of the
Old Capital Securities in exchange for a like aggregate
Liquidation Amount of the New Capital Securities.
Subject to and effective upon the acceptance for
exchange of all or any portion of the Old Capital Securities
tendered herewith in accordance with the terms and conditions of
the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers
to or upon the order of the Trust all right, title and interest
in and to such Old Capital Securities as are being tendered
herewith. The undersigned hereby irrevocably constitutes and
appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as
agent of the Company and the Trust in connection with the
Exchange Offer) with respect to the tendered Old Capital
Securities, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an
interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver Certificates for Old Capital
Securities to the Trust together with all accompanying evidences
of transfer and authenticity to, or upon the order of, the Trust,
upon receipt by the Exchange Agent, as the undersigned's agent,
of the New Capital Securities to be issued in exchange for such
Old Capital Securities, (ii) present Certificates for such Old
Capital Securities for transfer, and to transfer the Old Capital
Securities on the books of the Trust, and (iii) receive for the
account of the Trust all benefits and otherwise exercise all
rights of beneficial ownership of such Old Capital Securities,
all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT
THE UNDERSIGNED HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE,
SELL, ASSIGN AND TRANSFER THE OLD CAPITAL SECURITIES TENDERED
HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE, THE
TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND
ENCUMBRANCES, AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY
ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED
WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS
DEEMED BY THE COMPANY, THE TRUST OR THE EXCHANGE AGENT TO BE
NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND
TRANSFER OF THE OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE
UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE
REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED HAS READ AND
AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name and address of the registered holder of the
Old Capital Securities tendered hereby should be printed above,
if they are not already set forth above, as they appear on the
Certificates representing such Old Capital Securities. The
Certificate numbers and the Old Capital Securities that the
undersigned wishes to tender should be indicated in the
appropriate boxes above.
If any tendered Old Capital Securities are not
exchanged pursuant to the Exchange Offer for any reason, or if
Certificates are submitted for more Old Capital Securities than
are tendered or accepted for exchange, Certificates for such
nonexchanged or nontendered Old Capital Securities will be
returned (or, in the case of Old Capital Securities tendered by
book-entry transfer, such Old Capital Securities will be credited
to an account maintained at DTC), without expense to the
tendering holder, promptly following the expiration or
termination of the Exchange Offer.
<PAGE>
The undersigned understands that tenders of Old Capital
Securities pursuant to any one of the procedures described under
"The Exchange Offer--Procedures for Tendering Old Capital
Securities" in the Prospectus and in the instructions herein
will, upon the Company's and the Trust's acceptance for exchange
of such tendered Old Capital Securities, constitute a binding
agreement between the undersigned, the Company and the Trust upon
the terms and subject to the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set
forth in the Prospectus, the Company and the Trust may not be
required to accept for exchange any of the Old Capital Securities
tendered hereby.
Unless otherwise indicated in the box entitled
"Special Issuance Instructions" below, the undersigned hereby
directs that the New Capital Securities be issued in the name of
the undersigned or, in the case of a book-entry transfer of Old
Capital Securities, that such New Capital Securities be credited
to the account indicated above maintained at DTC. If applicable,
substitute Certificates representing Old Capital Securities not
exchanged or not accepted for exchange will be issued to the
undersigned or, in the case of a book-entry transfer of Old
Capital Securities, will be credited to the account indicated
above maintained at DTC. Similarly, unless otherwise indicated
under "Special Delivery Instructions" below, please deliver New
Capital Securities to the undersigned at the address shown below
the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS
LETTER OF TRANSMITTAL, THE UNDERSIGNED ACKNOWLEDGES THAT THIS
EXCHANGE OFFER IS BEING MADE BY THE COMPANY AND THE TRUST BASED
UPON THE COMPANY'S AND THE TRUST'S UNDERSTANDING OF AN
INTERPRETATION BY THE STAFF OF THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") AS SET FORTH IN NO- ACTION LETTERS
ISSUED TO THIRD PARTIES, THAT THE NEW CAPITAL SECURITIES ISSUED
IN EXCHANGE FOR THE OLD CAPITAL SECURITIES TO HOLDERS THEREOF
(OTHER THAN TO HOLDERS THAT ARE "AFFILIATES" OF THE COMPANY OR
THE TRUST WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES
ACT) MAY BE RESOLD WITHOUT COMPLIANCE WITH THE REGISTRATION AND
PROSPECTUS DELIVERY PROVISIONS OF THE SECURITIES ACT, PROVIDED
THAT, AND THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT, (I)
THE UNDERSIGNED IS NOT AN "AFFILIATE" OF THE COMPANY OR THE TRUST
WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES ACT, (II) ANY
NEW CAPITAL SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE
BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS, (III) THE
UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON
TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF NEW CAPITAL SECURITIES TO BE RECEIVED IN THE
EXCHANGE OFFER, AND (IV) IF THE UNDERSIGNED IS NOT A
BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT
INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH NEW CAPITAL SECURITIES. HOWEVER, THE
STAFF OF THE COMMISSION HAS NOT CONSIDERED THE EXCHANGE OFFER IN
THE CONTEXT OF A NO-ACTION LETTER AND THERE CAN BE NO ASSURANCE
THAT THE STAFF OF THE COMMISSION WOULD MAKE A SIMILAR
DETERMINATION WITH RESPECT TO THE EXCHANGE OFFER AS IN OTHER
CIRCUMSTANCES.
IF A HOLDER OF REGISTRABLE SECURITIES IS AN AFFILIATE
OF THE COMPANY, OR IS ENGAGED IN OR INTENDS TO ENGAGE IN A
DISTRIBUTION OF THE NEW CAPITAL SECURITIES OR HAS ANY ARRANGEMENT
OR UNDERSTANDING WITH RESPECT TO THE DISTRIBUTION OF THE NEW
CAPITAL SECURITIES TO BE ACQUIRED PURSUANT TO THE EXCHANGE OFFER,
SUCH HOLDER COULD NOT RELY ON THE APPLICABLE INTERPRETATIONS OF
THE STAFF OF THE COMMISSION AND MUST COMPLY WITH THE
<PAGE>
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES
ACT IN CONNECTION WITH ANY SECONDARY RESALE TRANSACTION.
BY TENDERING OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE
OFFER AND EXECUTING THIS LETTER OF TRANSMITTAL, A HOLDER OF OLD CAPITAL
SECURITIES WHICH IS A BROKER-DEALER REPRESENTS AND AGREES, CONSISTENT WITH
CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF THE
COMMISSION TO THIRD PARTIES, THAT (A) SUCH OLD CAPITAL SECURITIES
HELD BY THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (B) SUCH
OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING
ACTIVITIES AND IT WILL DELIVER A PROSPECTUS (AS AMENDED OR
SUPPLEMENTED FROM TIME TO TIME) MEETING THE REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH NEW CAPITAL
SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY DELIVERING
A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT
IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE COMPANY AND THE TRUST HAVE AGREED THAT, SUBJECT TO
THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, THE
PROSPECTUS (AS IT MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME) MAY BE USED BY A PARTICIPATING BROKER-DEALER IN CONNECTION
WITH RESALES OF NEW CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR
OLD CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE
ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR ITS OWN ACCOUNT
AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES, FOR A
PERIOD ENDING ONE YEAR AFTER THE EXPIRATION DATE. IN THAT REGARD,
EACH PARTICIPATING BROKER-DEALER WHO ACQUIRED OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR
OTHER TRADING ACTIVITIES, BY TENDERING SUCH OLD CAPITAL
SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL, AGREES THAT,
UPON RECEIPT OF NOTICE FROM THE COMPANY OR THE TRUST OF THE
OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES
ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE
PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR WHICH CAUSES THE
PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO
MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE
THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS
SPECIFIED IN THE REGISTRATION RIGHTS AGREEMENT, SUCH
PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF NEW CAPITAL
SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE COMPANY OR THE
TRUST HAS AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH
MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES OF THE AMENDED
OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER, OR
THE COMPANY OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF THE
NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital
Securities are accepted for exchange will not receive accumulated
Distributions on such Old Capital Securities for any period from
and after the last Distribution date to which Distributions have
been paid or duly provided for on such Old Capital Securities
prior to the original issue date of the New Capital Securities
or, if no such Distributions have been paid or duly provided for,
will not receive any accrued Distributions on such Old Capital
Securities, and the undersigned waives the right to receive any
interest on such Old Capital
<PAGE>
Securities accrued from and after such Distribution date or,
if no such Distributions have been paid or duly provided for,
from and after June 3, 1997.
All authority herein conferred or agreed to be
conferred in this Letter of Transmittal shall survive the death,
dissolution or incapacity of the undersigned and any obligation
of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the
undersigned. Except as stated in the Prospectus, this tender is
irrevocable.
<PAGE>
HOLDERS SIGN HERE
(See Instructions 2, 5 and 6)
(Please complete Substitute Form W-9 on page 19)
(Note: Signatures must be guaranteed if required by Instruction 2)
Must be signed by registered holder exactly as name
appears on Certificates for the Old Capital Securities hereby
tendered or on a security position listing, or by any person
authorized to become the registered holder by endorsements and
documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required
by the Trust or the Exchange Agent for the Old Capital Securities
to comply with the restrictions on transfer applicable to the Old
Capital Securities). If signature is by an attorney-in-fact,
executor, administrator, trustee, guardian, officer of a
corporation or another acting in a fiduciary capacity or
representative capacity, please set forth the signer's full
title. See Instruction 5.
................................................
................................................
(Signature of Holder)
Date............................................
Name............................................
(Please Print)
Capacity (full title)...........................
Address.........................................
................................................
(Include Zip Code)
Area Code and
Telephone Number................................
Tax Identification or
Social Security Number..........................
GUARANTEE OF SIGNATURE
(See Instructions 2 and 5)
................................................
(Authorized Signature)
Date............................................
Name of Firm....................................
(Please Print)
Capacity (full title)...........................
Address.........................................
................................................
(Include Zip Code)
Area Code and
Telephone Number................................
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if the New Capital Securities or any
Old Capital Securities that are not tendered are to be issued in
the name of someone other than the registered holder of the Old
Capital Securities whose name appears above.
Issue
__
__ New Capital Securities and/or
__
__ Old Capital Securities not tendered to:
Name.......................
(Please Print)
Address....................
...........................
...........................
(Include Zip Code)
Area Code and
Telephone Number...........
...........................
(Tax Identification or Social Security
Number)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if the New Capital Securities or any
Old Capital Securities that are not tendered are to be sent to
someone other than the registered holder of the Old Capital
Securities whose name appears above, or to such registered holder
at an address other than that shown above.
Mail
__
__ New Capital Securities
__
__ Old Capital Securities not tendered to:
Name.......................
(Please Print)
Address....................
...........................
...........................
(Include Zip Code)
Area Code and
Telephone Number...........
...........................
(Tax Identification or Social Security
Number)
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of Letter of Transmittal and Certificates;
Guaranteed Delivery Procedures. This Letter of Transmittal is to
be completed either if (a) Certificates are to be forwarded
herewith or (b) tenders are to be made pursuant to the procedures
for tender by book-entry transfer set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus and an Agent's Message is not delivered. Certificates,
or timely book-entry confirmation of a book-entry transfer of
such Old Capital Securities into the Exchange Agent's account at
DTC, as well as this Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required
signature guarantees and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at
its address set forth herein on or prior to the Expiration Date.
Tenders by book-entry transfer may also be made by delivering an
Agent's Message in lieu of this Letter of Transmittal. The term
"book-entry confirmation" means a timely written confirmation
from DTC of book-entry transfer of Old Capital Securities into
the Exchange Agent's account at DTC. The term "Agent's Message"
means a written message, transmitted by DTC to and received by
the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express
acknowledgment from the tendering participant, which
acknowledgment states that such participant has received and
agrees to be bound by the Letter of Transmittal (including the
representations contained herein) and that the Trust and the
Company may enforce the Letter of Transmittal against such
participant. Old Capital Securities may be tendered in whole or
in part.
Holders who wish to tender their Old Capital
Securities and (i) whose Old Capital Securities are not
immediately available or (ii) who cannot deliver their Old
Capital Securities, this Letter of Transmittal and all other
required documents to the Exchange Agent on or prior to the
Expiration Date or (iii) who cannot complete the procedures for
delivery by book-entry transfer on a timely basis, may tender
their Old Capital Securities by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus. Pursuant to such procedures: (i) such tender must be
made by or through an Eligible Institution (as defined below);
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Company
and the Trust, must be received by the Exchange Agent on or prior
to the Expiration Date; and (iii) the Certificates (or a
book-entry confirmation (as defined above and in the Prospectus))
representing all tendered Old Capital Securities, in proper form
for transfer, together with a Letter of Transmittal (or facsimile
thereof or Agent's Message in lieu thereof), properly completed
and duly executed, with any required signature guarantees and any
other documents required by this Letter of Transmittal, must be
received by the Exchange Agent within three New York Stock
Exchange trading days after the date of execution of such Notice
of Guaranteed Delivery, all as provided in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by
hand or transmitted by facsimile or mail to the Exchange Agent,
and must include a guarantee by an Eligible Institution in the
form set forth in such Notice. For Old Capital Securities to be
properly tendered pursuant to the guaranteed delivery procedure,
the Exchange Agent must receive a Notice of Guaranteed Delivery
on or prior to the Expiration Date. As used herein and in the
Prospectus, "Eligible Institution" means a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act as "an eligible
guarantor institution," including (as such terms are defined
therein): (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii)
a credit union; (iv) a national securities exchange, registered
<PAGE>
securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer
Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF
DELIVERY IS BY MAIL, THEN REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Neither the Company nor the Trust will accept any
alternative, conditional or contingent tenders. Each tendering
holder, by execution of a Letter of Transmittal (or facsimile
thereof or Agent's Message in lieu thereof), waives any right to
receive any notice of the acceptance of such tender.
2. Guarantee of Signatures. No signature guarantee of this
Letter of Transmittal is required if:
(i) this Letter of Transmittal is signed by the
registered holder (which term, for purposes of this document,
shall include any participant in DTC whose name appears on a
security position listing as the owner of the Old Capital
Securities) of Old Capital Securities tendered herewith, unless
such holder has completed either the box entitled "Special
Issuance Instructions" or the box entitled "Special Delivery
Instructions" above, or
(ii) such Old Capital Securities are tendered for the
account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee
the signature on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box
captioned "Description of Old Capital Securities Tendered" is
inadequate, the Certificate numbers and/or the Liquidation Amount
of Old Capital Securities and any other required information
should be listed on a separate signed schedule which is attached
to this Letter of Transmittal.
4. Partial Tenders and Withdrawal Rights. If less than
all the Old Capital Securities evidenced by any Certificate
submitted are to be tendered, fill in the Liquidation Amount of
Old Capital Securities which are to be tendered in the box
entitled "Liquidation Amount of Old Capital Securities Tendered
(if less than all)." In such case, a new Certificate for the
remainder of the Old Capital Securities that were evidenced by
the old Certificate will be sent to the holder of the Old Capital
Security promptly after the Expiration Date unless the
appropriate boxes on this Letter of Transmittal are completed.
All Old Capital Securities represented by Certificates delivered
to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated.
Except as otherwise provided herein, tenders of Old
Capital Securities may be withdrawn at any time on or prior to
the Expiration Date. In order for a withdrawal to be effective on
or prior to that time, a written or facsimile transmission of
such notice of withdrawal must be timely received by the Exchange
Agent at its address set forth above or in the Prospectus on or
prior to the Expiration Date. Any such notice of withdrawal must
specify the name of the person who tendered the Old Capital
Securities to be withdrawn, the aggregate Liquidation Amount of
Old Capital Securities to
<PAGE>
be withdrawn, and (if Certificates for Old Capital
Securities have been tendered) the name of the registered holder
of the Old Capital Securities as set forth on the Certificates
for the Old Capital Securities, if different from that of the
person who tendered such Old Capital Securities. If Certificates
for the Old Capital Securities have been delivered or otherwise
identified to the Exchange Agent, then prior to the physical
release of such Certificates for the Old Capital Securities, the
tendering holder must submit the serial numbers shown on the
particular Certificates for the Old Capital Securities to be
withdrawn and the signature on the notice of withdrawal must be
guaranteed by an Eligible Institution, except in the case of Old
Capital Securities tendered for the account of an Eligible Institution.
If Old Capital Securities have been tendered pursuant to the
procedures for book-entry transfer set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus, the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal
of Old Capital Securities, in which case a notice of withdrawal
will be effective if delivered to the Exchange Agent by written
or facsimile transmission. Withdrawals of tenders of Old Capital
Securities may not be rescinded. Old Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the
Exchange Offer, but may be retendered at any subsequent time on
or prior to the Expiration Date by following any of the
procedures described in the Prospectus under "The Exchange
Offer--Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be
determined by the Company and the Trust, in their sole
discretion, whose determination shall be final and binding on all
parties. The Company and the Trust, any affiliates or assigns of
the Company and the Trust, the Exchange Agent or any other person
shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability
for failure to give any such notification. Any Old Capital
Securities which have been tendered but which are withdrawn will
be returned to the holder thereof without cost to such holder
promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments
and Endorsements. If this Letter of Transmittal is signed by the
registered holder of the Old Capital Securities tendered hereby,
the signature must correspond exactly with the name as written on
the face of the Certificates or on a security position listing
without alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby
are owned of record by two or more joint owners, all such owners
must sign this Letter of Transmittal.
If any tendered Old Capital Securities are registered
in different names on several Certificates, it will be necessary
to complete, sign and submit as many separate Letters of
Transmittal (or facsimiles thereof or Agent's Messages in lieu
thereof) as there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or
bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons
should so indicate when signing and must submit proper evidence
satisfactory to the Company and the Trust, in their sole
discretion, of such persons' authority to so act.
When this Letter of Transmittal is signed by the
registered owner of the Old Capital Securities listed and
transmitted hereby, no endorsement of Certificates or separate
bond powers are required unless New Capital Securities are to be
issued in the name of a person other than the registered holder.
Signatures on such Certificates or bond powers must be guaranteed
by an Eligible Institution.
If this Letter of Transmittal is signed by a person
other than the registered owner of the Old Capital Securities
listed, the Certificates must be endorsed or accompanied by
appropriate bond
<PAGE>
powers, signed exactly as the name of the registered owner appears
on the Certificates, and also must be accompanied by such opinions of
counsel, certifications and other information as the Company, the Trust or
the Exchange Agent may require in accordance with the restrictions on
transfer applicable to the Old Capital Securities. Signatures on such
Certificates or bond powers must be guaranteed by an Eligible
Institution.
6. Special Issuance and Delivery Instructions. If New
Capital Securities are to be issued in the name of a person other
than the signer of this Letter of Transmittal, or if New Capital
Securities are to be sent to someone other than the signer of
this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should
be completed. Certificates for Old Capital Securities not
exchanged will be returned by mail or, if tendered by book-entry
transfer, by crediting the account indicated above maintained at
DTC unless the appropriate boxes on this Letter of Transmittal
are completed. See Instruction 4.
7. Irregularities. The Company and the Trust will
determine, in their sole discretion, all questions as to the form
of documents, validity, eligibility (including time of receipt)
and acceptance for exchange of any tender of Old Capital
Securities, which determination shall be final and binding on all
parties. The Company and the Trust reserve the absolute right to
reject any and all tenders determined by either of them not to be
in proper form or the acceptance of which, or exchange for, may,
in the view of counsel to the Company or the Trust, be unlawful.
The Company and the Trust also reserve the absolute right,
subject to applicable law, to waive any of the conditions of the
Exchange Offer set forth in the Prospectus under "The Exchange
Offer--Conditions to the Exchange Offer" or any conditions or
irregularity in any tender of Old Capital Securities of any
particular holder whether or not similar conditions or
irregularities are waived in the case of other holders. The
Company's and the Trust's interpretation of the terms and
conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and
binding. No tender of Old Capital Securities will be deemed to
have been validly made until all irregularities with respect to
such tender have been cured or waived. The Company, the Trust,
any affiliates or assigns of the Company or the Trust, the
Exchange Agent or any other person shall not be under any duty to
give notification of any irregularities in tenders or incur any
liability for failure to give such notification.
8. Questions, Requests for Assistance and Additional
Copies. Questions and requests for assistance may be directed to
the Exchange Agent at its address and telephone number set forth
on the front of this Letter of Transmittal. Additional copes of
the Prospectus, the Notice of Guaranteed Delivery and the Letter
of Transmittal may be obtained from the Exchange Agent or from
your broker, dealer, commercial bank, trust company or other
nominee.
9. 31% Backup Withholding; Substitute Form W-9. Under
U.S. Federal income tax law, a holder whose tendered Old Capital
Securities are accepted for exchange is required to provide the
Exchange Agent with such holder's correct taxpayer identification
number ("TIN") on the Substitute Form W-9 included below. Failure
to provide the Exchange Agent with the correct TIN may subject
distributions and other payments to such holders or other payees
with respect to Old Capital Securities exchanged pursuant to the
Exchange Offer to 31% backup withholding. In addition, the
Internal Revenue Service (the "IRS") may subject the holder or
other payee to a $50 penalty.
The box in Part 3 of the Substitute Form W-9 may be
checked if the tendering holder has not been issued a TIN and has
applied for a TIN or intends to apply for a TIN in the near
future. If the box in Part 3 is checked, the holder or other
payee must also complete the Certificate of Awaiting Taxpayer
Identification Number (also included below) in order to avoid
backup withholding with respect to distributions or other
payments. Notwithstanding that the box in Part 3 is checked and
the Certificate of Awaiting Taxpayer Identification Number is
completed, the Exchange Agent will withhold 31% of all
<PAGE>
payments made prior to the time a properly certified TIN is provided to
the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the
Substitute Form W-9. If the holder furnishes the Exchange Agent
with its TIN within 60 days after the date of the Substitute Form
W-9, the amounts retained during the 60 day period will be
remitted to the holder and no further amounts shall be retained
or withheld from payments made to the holder thereafter. If,
however, the holder has not provided the Exchange Agent with its
TIN within such 60 day period, amounts withheld will be remitted
to the IRS as backup withholding. In addition, 31% of all
payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the
TIN (e.g., social security number or employer identification
number) of the registered owner of the Old Capital Securities or
of the last transferee appearing on the transfers attached to, or
endorsed on, the Old Capital Securities. If the Old Capital
Securities are registered in more than one name or are
not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9" for additional guidance on which number
to report.
Certain holders (including, among others,
corporations, financial institutions and certain foreign persons)
may not be subject to these backup withholding and reporting
requirements. Such holders should nevertheless complete the
attached Substitute Form W-9 below, and write "exempt" on the
face thereof, to avoid possible erroneous backup withholding. A
foreign person may qualify as an exempt recipient by submitting a
properly completed IRS Form W-8, signed under penalties of
perjury, attesting to that holder's exempt status. Please consult
the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional
guidance on which holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal
income tax. Rather, the U.S. Federal income tax liability of a
person subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained.
10. Lost, Destroyed or Stolen Certificates. If any
Certificates representing Old Capital Securities have been lost,
destroyed or stolen, the holder should promptly notify the
Exchange Agent. The holder will then be instructed as to the
steps that must be taken in order to replace the Certificates.
This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or
stolen Certificates have been followed.
11. Security Transfer Taxes. Holders who tender their
Old Capital Securities for exchange will not be obligated to pay
any transfer taxes in connection therewith. If, however. New
Capital Securities are to be delivered to, or are to be issued in
the name of, any person other than the registered holder of the
Old Capital Securities tendered, or if a transfer tax is imposed
for any reason other than the exchange of Old Capital Securities
in connection with the Exchange Offer, then the amount of any
such transfer tax (whether imposed on the registered holder or
any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such
tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF
OR AGENT'S MESSAGE IN LIEU THEREOF) AND ALL OTHER REQUIRED DOCUMENTS
MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION
DATE.
<PAGE>
- -------------------------------------------------------------------------------
PAYER'S NAME THE BANK OF NEW YORK
- -------------------------------------------------------------------------------
Part 1 - PLEASE PROVIDE YOUR TIN Social Security
IN THE BOX AT RIGHT AND Number or Employer
CERTIFY BY SIGNING AND DATING Identification Number
BELOW
----------------
----------------------------------------------------------
SUBSTITUTE Part 2 - CERTIFICATION - Under penalties of perjury, I
FORM W-9 certify that:
Department of the (1) The number shown on this form is my correct
Treasury Internal Taxpayer Identification Number (or I am waiting for a
Revenue Service number to be issued to me) and
Payer's Request for (2) I am not subject to backup withholding either because:
Taxpayer Number (TIN) (a) I am exempt from backup withholding, or (b) I have
not been notified by the Internal Revenue Service
(the "IRS") that I am subject to backup withholding as
a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
---------------------------------------------------------
CERTIFICATION INSTRUCTIONS -- Part 3
You must cross out item (2) above if you
have been notified by the IRS that you Awaiting
are currently subject to backup __
witholding because of underreporting TIN __
interest or dividends on your tax
return. However, if after being notified
by the IRS that you are subject to
backup withholding, you received another
notification from the IRS that you are
no longer subject to backup withholding,
do not cross out such item (2).
THE INTERNAL REVENUE SERVICE DOES NOT
REQUIRE YOUR CONSENT TO ANY PROVISION OF
THIS DOCUMENT OTHER THAN THE
CERTIFICATIONS REQUIRED TO AVOID BACKUP
WITHHOLDING.
SIGNATURE................
DATE.....................
NAME (Please Print)......
ADDRESS (Please Print)...
.........................
- -------------------------------------------------------------------------------
<PAGE>
...............................................................................
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO
THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
...............................................................................
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (1) I
have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (2) I intend
to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification
number by the time of payment, 31% of all reportable payments
made to me will be withheld, but that such amounts will be
refunded to me if I then provide a Taxpayer Identification Number
within sixty (60) days.
Signature.................................. Date............................
Name (Please Print)............................................................
Address (Please Print).........................................................
80629
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
9.10% SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
GREENPOINT CAPITAL TRUST I
As set forth in the Prospectus dated ________________,
1997 (the "Prospectus"), of GreenPoint Capital Trust I (the
"Trust") and GreenPoint Financial Corp. (the "Company") under the
caption "The Exchange Offer--Procedures for Tendering Old Capital
Securities--Guaranteed Delivery," this form must be used to
accept the Trust's offer to exchange its 9.10% Subordinated
Capital Income Securities which have been registered under the
Securities Act of 1933, as amended (the "New Capital
Securities"), for a like Liquidation Amount of its outstanding
9.10% Subordinated Capital Income Securities (the "Old Capital
Securities"), by Holders who wish to tender their Old Capital
Securities and (i) whose Old Capital Securities are not immediately
available or (ii) who cannot deliver their Old Capital Securities,
the Letter of Transmittal or an Agent's Message (as defined in the
Prospectus) and any other documents required by the Letter of
Transmittal to the Exchange Agent prior to the Expiration Date.
This form must be delivered by mail or hand delivery or
transmitted, via facsimile, to the Exchange Agent at its address
set forth below not later than the Expiration Date. All
capitalized terms used herein but not defined herein shall have
the meanings ascribed to them in the Prospectus.
The Exchange Agent is:
THE BANK OF NEW YORK
By Mail: By Facsimile: By Overnight Courier
or Hand:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street 101 Barclay Street
New York, New York 10286 For Information Call: New York, New York 10286
Attn: Enrique Lopez, (212) 815-6333 Corporate Trust Services
Reorganization Section, Window, Ground Level
Floor 7E Attn: Enrique Lopez,
Reorganization Section
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION VIA FACSIMILE TO A NUMBER OTHER THAN THE ONE
LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders for exchange to the
Trust upon the terms and subject to the conditions set forth in
the Prospectus and the Letter of Transmittal, receipt of which is
hereby acknowledged, the aggregate Liquidation Amount of Old
Capital Securities set forth below pursuant to the guaranteed
delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer-- Procedures for Tendering Old Capital
Securities--Guaranteed Delivery."
The undersigned understands and acknowledges that the
Exchange Offer will expire at 5:00 p.m. New York City time, on
_______________, 1997, unless extended by the Trust. The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on
_____________, 1997, unless the Exchange Offer is extended as
provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange
Offer is extended.
All authority conferred or agreed to be conferred by
this Notice of Guaranteed Delivery shall survive the death,
incapacity or dissolution of the undersigned, and every
obligation of the undersigned under this Notice of Guaranteed
Delivery shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns.
<PAGE>
SIGNATURE
X......................................... Date:.................
X......................................... Date:.................
Signature(s) of Registered Holder(s) or Authorized Signatory
Area Code and Telephone Number:...................................
Name(s):..........................................................
(Please Print)
Capacity (full title, if signing in a fiduciary or representative
capacity):
..................................................................
Address:..........................................................
(Including Zip Code)
Taxpayer Identification or Social Security No.:...................
Aggregate Liquidation Amount
of Old Capital Securities Tendered: $.............................
Certificate Number(s) of Old Capital
Securities (if available): $ .....................................
Aggregate Liquidation Amount
Represented by Certificate(s): $..................................
IF TENDERED OLD CAPITAL SECURITIES WILL BE DELIVERED BY
BOOK-ENTRY TRANSFER, PROVIDE THE DEPOSITORY TRUST COMPANY ("DTC")
ACCOUNT NUMBER AND TRANSACTION CODE NUMBER (IF AVAILABLE):
Account No........................................................
Transaction No....................................................
<PAGE>
GUARANTY OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified as
an "eligible guarantor institution" within the meaning of Rule
17Ad-15 promulgated under the Securities Exchange Act of 1934, as
amended, guarantees deposit with the Exchange Agent of a properly
completed and executed Letter of Transmittal (or facsimile
thereof), or an Agent's Message, as well as the certificate(s)
representing all tendered Old Capital Securities in proper form
for transfer, or confirmation of the book-entry transfer of such
Old Capital Securities into the Exchange Agent's account at the
Book-Entry Transfer Facility described in the Prospectus under
the caption "The Exchange Offer--Procedures for Tendering Old
Capital Securities--Book-Entry Transfer" and other documents
required by the Letter of Transmittal, all by 5:00 p.m., New York
City time, on the third New York Stock Exchange trading day
following the Expiration Date.
Name of Eligible Institution:.....................................
Address:..........................................................
..........................................................
..........................................................
Area Code and Telephone Number:...................................
AUTHORIZED SIGNATURE
Name:..........................
Title:.........................
Date:..........................
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE. ACTUAL
SURRENDER OF OLD CAPITAL SECURITIES MUST BE PURSUANT TO, AND BE
ACCOMPANIED BY, A PROPERLY EXECUTED LETTER OF TRANSMITTAL AND ANY
OTHER REQUIRED DOCUMENTS.
<PAGE>
EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
_______________ __, 1997
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street - 21st Floor
New York, New York 10286
Ladies and Gentlemen:
GreenPoint Financial Corp., a Delaware corporation
("GreenPoint"), and GreenPoint Capital Trust I, a business trust
created under the laws of Delaware (the "Issuer"), are offering
to exchange (the "Exchange Offer"), among other securities, the
9.10% Subordinated Capital Income Securities of the Issuer which
are being registered under the Securities Act of 1933, as amended
(the "New Capital Securities") for a like aggregate Liquidation
Amount of the outstanding 9.10% Subordinated Capital Income
Securities of the Issuer (the "Old Capital Securities" and,
together with the New Capital Securities, the "Capital
Securities"), pursuant to a prospectus (the "Prospectus")
included in a Registration Statement on Form S-4 (File Nos.
________ and, as amended, the "Registration Statement"), filed
with the Securities and Exchange Commission (the "SEC"). The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on
_________________, 1997, unless the Exchange Offer is extended as
provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, The Bank of
New York will act as the Exchange Agent (the "Exchange Agent")
for the Exchange Offer. A copy of the Prospectus is attached
hereto as EXHIBIT A. Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed
thereto in the Prospectus.
GreenPoint and the Issuer expressly reserve the right
to amend or terminate the Exchange Offer, and not to accept for
exchange any Old Capital Securities not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer--Conditions to the Exchange Offer."
A copy of each of the form of the letter of
transmittal (the "Letter of Transmittal") and the form of the
notice of guaranteed delivery (the "Notice of Guaranteed
Delivery" and, together with the Letter of Transmittal, the
"Tender Documents") to be used by Holders of Old Capital
Securities to surrender Old Capital Securities in order to
receive New Capital Securities pursuant to the Exchange Offer are
attached hereto as EXHIBIT B.
<PAGE>
GreenPoint and the Issuer hereby appoint you to act as
Exchange Agent in connection with the Exchange Offer. In carrying
out your duties as Exchange Agent, you are to act in good faith
and in accordance with the following provisions of this
Agreement:
1. You are to mail the Prospectus and the Tender
Documents to all of the Holders and participants in The
Depository Trust Company ("DTC") system on the day that you are
notified in writing by GreenPoint and the Issuer that the
Registration Statement has become effective under the Securities
Act of 1933, as amended, or as soon as practicable thereafter,
and to make subsequent mailings thereof to any persons who you
have been notified (by DTC or GreenPoint) have become Holders
prior to the Expiration Date and to any persons as may from time
to time be requested by GreenPoint. All mailings pursuant to this
Section 1 shall be by first-class mail, postage prepaid, unless
otherwise specified by GreenPoint or the Issuer. You shall also
accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information
shall relate only to the procedures for tendering Old Capital
Securities in (or withdrawing tenders of Old Capital Securities
from) the Exchange Offer. All other requests for information
relating to the Exchange Offer shall be directed to GreenPoint,
Attention: ___________.
2. You are to examine the Letters of Transmittal and
the Old Capital Securities and other documents delivered to or
received by you, by or for the Holders (including any book-entry
confirmations, as such term is defined in the Prospectus), to
ascertain whether (i) the Letters of Transmittal and any other
Tender Documents are duly executed and properly completed in
accordance with the instructions set forth therein and that the
book-entry confirmations are in due and proper form and contain
the information required to be set forth therein, (ii) the Old
Capital Securities have otherwise been properly tendered, and
(iii) Holders have provided their Tax Identification Number or
required certification. In each case where a Letter of
Transmittal or other document has been improperly executed or
completed or, for any other reason, is not in proper form, or
some other irregularity exists, you will, subject to the
following sentence, take such action as you consider appropriate
to notify the tendering Holder of such irregularity and as to the
appropriate means of resolving the same. Determination of
questions as to the proper completion or execution of the Letters
of Transmittal, or as to the proper form for transfer of the Old
Capital Securities or as to any other irregularity in connection
with the submission of Letters of Transmittal and/or Old Capital
Securities and other documents in connection with the Exchange
Offer, shall be made by the officers of, or counsel for,
GreenPoint and the Issuer at their written instructions or oral
direction confirmed by facsimile. Any determination made by
GreenPoint and the Issuer on such questions shall be final and
binding.
3. At the written request of GreenPoint and the Issuer
or their counsel, you shall notify tendering Holders of Old
Capital Securities in the event of any extension, termination or
amendment of the Exchange Offer. In the event of any such
termination, you will return all tendered Old Capital Securities
to the persons entitled thereto, at the request and expense of
GreenPoint.
<PAGE>
4. Tenders of the Old Capital Securities may be made
only as set forth in the Letter of Transmittal and in the section
of the Prospectus entitled "The Exchange Offer." Notwithstanding
the foregoing, tenders which GreenPoint or the Issuer shall
approve in writing as having been properly tendered shall be
considered to be properly tendered. Letters of Transmittal and
Notices of Guaranteed Delivery shall be recorded by you as to the
date and time of receipt and shall be preserved and retained by
you at GreenPoint's expense for six years. New Capital Securities
are to be issued in exchange for Old Capital Securities pursuant
to the Exchange Offer only (i) upon receipt by you prior to the
Expiration Date (or, in the case of a tender pursuant to a Notice
of Guaranteed Delivery as outlined in Instruction 1 of the Letter
of Transmittal, within three New York Stock Exchange trading days
after the Expiration Date of the Exchange Offer), of a completed
Letter of Transmittal, together with the corresponding Capital
Securities certificate, or (ii) upon receipt by you prior to the
Expiration Date, in the event that the Holder is a participant in
the DTC system, of a completed Letter of Transmittal (or an
Agent's Message in lieu thereof), together with book entry
confirmation in accordance with DTC's Automated Tender Offer
Program ("ATOP").
You are hereby directed to establish an account with
respect to the Old Capital Securities at DTC (the "Book Entry
Transfer Facility") within two days after the Effective Date of
the Exchange Offer in accordance with Section 17A(d) of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder. Any financial institution that is a
participant in the Book Entry Transfer Facility system may, until
the Expiration Date, make book-entry delivery of the Old Capital
Securities by causing the Book Entry Transfer Facility to
transfer such Old Capital Securities into your account in
accordance with the procedure for such transfer established by
the Book Entry Transfer Facility. In every case, however, a
Letter of Transmittal (or a manually executed facsimile thereof)
or an Agent's Message, properly completed and duly executed, with
any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the
Expiration Date or the guaranteed delivery procedures described
in the Exchange Offer must be complied with.
5. Upon the oral or written request of GreenPoint or
the Issuer (with written confirmation of any such oral request
thereafter), you will transmit by telephone, and promptly
thereafter confirm in writing, to ________________________, or
such other persons as GreenPoint or the Issuer may reasonably
request at the address and telephone number set forth in Section
23 hereof, the aggregate number and principal amount of Old
Capital Securities tendered to you and the number and principal
amount of Old Capital Securities properly tendered that day. In
addition, you will also inform the aforementioned persons, upon
oral request made from time to time (with written confirmation of
such request thereafter) prior to the Expiration Date, of such
information as they or any of them may reasonably request.
6. Upon acceptance by GreenPoint and the Issuer of
any Old Capital Securities duly tendered pursuant to the
Exchange Offer (such acceptance if given orally, to be con-
firmed in writing), GreenPoint and the Issuer will cause
New Capital Securities in exchange therefor to be issued
as promptly as possible, and deliver such New Capital
Securities to you. As promptly as possible after the Expira-
tion Date you will deliver such New Capital Securities on
<PAGE>
behalf of GreenPoint and the Issuer at the rate of $1,000 (1
Capital Security) principal amount of New Capital Securities for
each $1,000 principal amount of Old Capital Securities tendered.
7. Tenders pursuant to the Exchange Offer are
irrevocable, except that, subject to the terms and the conditions
set forth in the Prospectus and the Letter of Transmittal, Old
Capital Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date in
accordance with the terms of the Exchange Offer.
8. Notice of any decision by GreenPoint and the Issuer
not to exchange any Old Capital Securities tendered shall be
given to you by GreenPoint or the Issuer either orally (if given
orally, to be confirmed in writing) or in a written notice.
9. If, pursuant to the Exchange Offer, GreenPoint and
the Issuer do not accept for exchange all or part of the Old
Capital Securities tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus
under the caption "The Exchange Offer--Conditions to the Exchange
Offer" or otherwise, you shall, upon notice from GreenPoint and
the Issuer (such notice if given orally, to be confirmed in
writing), promptly after the expiration or termination of the
Exchange Offer, return the certificates evidencing unaccepted Old
Capital Securities (or effect appropriate book-entry transfer),
together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the
persons who deposited such certificates or effected such
book-entry transfer.
10. Certificates for reissued Old Capital Securities,
unaccepted Old Capital Securities or New Capital Securities shall
be forwarded at GreenPoint's expense by first-class mail.
11. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, commercial bank, trust company or other nominee or to
engage or use any person to solicit tenders.
12. If any Holder shall report to you that his or her
failure to surrender Old Capital Securities registered in his or
her name is due to the loss or destruction of a certificate or
certificates, you shall request such Holder (i) to furnish to you
an affidavit of loss and, if required by GreenPoint and the
Issuer, a bond of indemnity in an amount and evidenced by such
certificate or certificates of a surety, as may be satisfactory
to you, GreenPoint and the Issuer, and (ii) to execute and
deliver an agreement to indemnify GreenPoint, the Issuer and you,
in such form as is acceptable to you, GreenPoint and the Issuer.
The obligees to be named in each such indemnity bond shall
include you, GreenPoint and the Issuer. You shall report to
GreenPoint the names of all Holders who claim that their Old
Capital Securities have been lost or destroyed and the principal
amount of such Old Capital Securities.
13. As soon as practicable after the Expiration Date,
you shall arrange for cancellation of the Old Capital Securities
submitted to you or returned by DTC in connection with ATOP.
Such Old Capital Securities shall be canceled and retired by
you in your capacity as Trustee (the "Trustee") under the
Indenture dated June 3, 1997, as amended and supplemented by
<PAGE>
the First Supplemental Indenture dated June 3, 1997, governing
the Capital Securities, as you are instructed by GreenPoint and
the Trust (or a representative designated by GreenPoint or the
Trust) in writing.
14. For your services as the Exchange Agent hereunder,
GreenPoint shall pay you in accordance with the schedule of fees
attached hereto as EXHIBIT C. GreenPoint also will reimburse you
for your reasonable and documented out-of-pocket expenses
(including, but not limited to, all reasonable and documented
attorneys' fees and expenses not previously paid to you as set
forth in EXHIBIT C) in connection with your services promptly
after submission to GreenPoint of itemized statements.
15. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than
those specifically set forth herein or in the Exhibits attached
hereto or as may be subsequently requested in writing of you by
GreenPoint or the Issuer and agreed to by you in writing with
respect to the Exchange Offer;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, accuracy, sufficiency,
value or genuineness of any Old Capital Securities deposited with
you hereunder or any New Capital Securities, any Tender Documents
or other documents prepared by GreenPoint or the Issuer in
connection with the Exchange Offer or any signatures or
endorsements other than your own, and will not be required to
make and will not make any representations as to the validity,
sufficiency, value or genuineness of the Exchange Offer or any
other disclosure materials in connection therewith; provided,
however, that in no way will your general duty to act in good
faith be discharged by the foregoing;
(c) shall not be obligated to take any legal action
hereunder which might in your judgment involve any expense or
liability unless you shall have been furnished with an indemnity
reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and
indemnified as provided in Section 16 hereof in acting upon, the
written or oral instructions with respect to any matter relating
to your acting as Exchange Agent specifically covered by this
Agreement or supplementing or qualifying any such action of any
officer or agent of such other person or persons as may be
designated by GreenPoint or the Issuer;
(e) may consult with counsel satisfactory to you,
including counsel for GreenPoint, and the advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder
in good faith and in accordance with such advice of such counsel;
(f) shall not at any time advise any person whether to
tender or to refrain from tendering all or any portion of their
Old Capital Securities in the Exchange Offer or as to the market
value or decline or appreciation in market value of any Old
Capital Securities or New Capital Securities; and
<PAGE>
(g) shall not be liable for any action which you may
do or refrain from doing in connection with this Agreement except
for your negligence, willful misconduct or bad faith.
16. (a) GreenPoint and the Issuer covenant and agree
to indemnify and hold harmless The Bank of New York and its
officers, directors, employees, agents and affiliates
(collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable documented
expense of any nature (including reasonable documented attorneys'
fees and other fees and expenses) incurred in connection with the
administration of the duties of the Indemnified Parties hereunder
in accordance with this Agreement; provided, however, such
Indemnified Party shall use its best efforts to notify GreenPoint
and the Issuer by letter, or by facsimile confirmed by letter, of
the written assertion of a claim against such Indemnified Party,
or of any action commenced against such Indemnified Party,
promptly after but in any event within 15 days of the date such
Indemnified Party shall have received any such written assertion
of a claim or shall have been served with a summons, or other
legal process, giving information as to the nature and basis of
the claim; provided, further, that failure to so notify
GreenPoint and the Issuer shall not relieve GreenPoint or the
Issuer of any liability which they may otherwise have hereunder
except to the extent that GreenPoint or the Issuer is prejudiced
by such failure to notify. Anything in this Agreement to the
contrary notwithstanding, neither GreenPoint nor the Issuer shall
be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of an
Indemnified Person's gross negligence, bad faith or willful
misconduct. GreenPoint and the Issuer shall be entitled to
participate at their own expense in the defense of any such claim
or legal action and, if GreenPoint or the Issuer so elects,
GreenPoint or the Issuer may assume the defense of any suit
brought to enforce any such claim. In the event GreenPoint or the
Issuer elects to assume such defense, neither GreenPoint nor the
Issuer shall be liable for any fees and expenses thereafter
incurred by such Indemnified Party so long as GreenPoint or the
Issuer shall retain counsel reasonably satisfactory to the
Indemnified Party.
(b) The Bank of New York agrees that, without the
prior written consent of GreenPoint and the Issuer (which consent
shall not be unreasonably withheld), it will not settle,
compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the
indemnification provision of this Agreement (whether The Bank of
New York, GreenPoint or the Issuer or any of their directors,
officers and controlling persons is an actual or potential party
to such claim, action or proceeding), unless such settlement,
compromise or consent includes an unconditional release of
Greenpoint, the Issuer, and their directors, officers and
controlling persons from all liability arising out of such claim,
action or proceeding.
17. This Agreement and your appointment as Exchange
Agent shall be construed and enforced in accordance with the laws
of the State of New York and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the
successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this
Agreement.
<PAGE>
18. The parties hereto hereby irrevocably submit to
the venue and jurisdiction of any New York State or federal court
sitting in the Borough of Manhattan in New York City in any
action or proceeding arising out of or relating to this
Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding shall be heard and
determined in such New York State or federal court. The parties
hereby consent to and grant to any such court jurisdiction over
the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or
other papers in the manner provided herein, or in such other
manner as may be permitted by law, shall be valid and sufficient
service thereof.
19. This Agreement may not be modified, amended or
supplemented without an express written agreement executed by the
parties hereto. Any inconsistency between this Agreement and the
Tender Documents, as they may from time to time be supplemented
or amended, shall be resolved in favor of the latter, except with
respect to the duties, liabilities and indemnification of you as
Exchange Agent.
20. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
21. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
22. Unless terminated earlier by the parties hereto,
this Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Sections 14 and 16 shall
survive the termination of this Agreement.
23. All notices and communications hereunder shall be
in writing and shall be deemed to be duly given if delivered
against written receipt thereof or mailed by first class
certified or registered mail, postage prepaid, or sent by
facsimile transmission, as follows:
If to GreenPoint: GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
Telephone: (212) 834-1711
Facsimile: (212) ________
Attention: _____________
<PAGE>
If to the Issuer: GreenPoint Capital Trust I
c/o GreenPoint Financial Corp.
90 Park Avenue
New York, New York 10016
Telephone: (212) 834-1711
Facsimile: (212) ________
Attention: _____________
If to you: The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Telephone: (212) 815-5192
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
or such other address or facsimile number as any of the above may
have furnished to the other parties in writing for such purpose.
24. This Agreement and all of the obligations hereunder
shall be assumed by any and all successors and assigns of the Issuer
and GreenPoint.
<PAGE>
If the foregoing is in accordance with your
understanding, would you please indicate your agreement by
signing and returning the enclosed copy of this Agreement to
GreenPoint.
Very truly yours,
GREENPOINT FINANCIAL CORP.
By: _____________________________
Name:
Title:
GREENPOINT CAPITAL TRUST I
By: _____________________________
Name:
Title: Administrator
Agreed to this __ day of _______________, 1997
THE BANK OF NEW YORK
By: _________________________
Name:
Title:
<PAGE>
Exhibit A
Prospectus
<PAGE>
Exhibit B
Tender Documents
<PAGE>
Exhibit C
Schedule of Fees
Covers review of the Letter of Transmittal, DTC ATOP
Voluntary Offering Instruction, the Exchange Agent Agreement and
other related documentation, if any, as required by the Exchange
Offer; set-up of records and accounts; distribution of materials;
all operational and administrative charges and time in connection
with the review, receipt and processing of Letters of
Transmittal, processing delivery of Guarantees, legal items,
withdrawals, record keeping, and answering securityholders'
inquiries pertaining to the Exchange Offer.
Flat Fee: $2500
Per extension: 500
NOTE
These fees are also subject to change should circumstances
warrant. Reimbursement for all reasonable and documented
out-of-pocket expenses, disbursements (including postage,
telex, facsimile, photocopying and advertising costs), and
reasonable and documented fees of counsel (including their
reasonable and documented disbursements and expenses)
incurred in the performance of our duties will be added to
the billed fees. Once appointed, if the Exchange Offer
should fail to close for reasons beyond our control, we
will require reimbursement in full for our reasonable and
documented legal fees and any reasonable and documented
out-of-pocket expenses related to our responsibilities
under the Exchange Agent Agreement.
Fees for any services not specifically covered in this or
any other applicable schedule will be based on the
appraisal of services rendered.
